Brief for the Petitioner — Baltimore & Ohio R. Co. v. Kepner

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Supreme Court of the United States

CCTOBZR TERM, 1940

No. 678 »»

THE BALTIMORE AND OHIO RATLROAD COMPANY,

Petitioner,

FREDERICK S. KREPNER.

BRIEF FOR THE PETITIONER ON THE MERITS

Mortsan R. Watrre,

* Winiram A. Eacers,

Puiup J. Scunxemer,

Cincinnati, Ohio,

Harry H. Byrer,

Baltimore, Mad.,

Counsel for Petitioner.

Ware, Scuinpen & BayLess,

(*neinnati, Ohio.

Attorneys for Petitioner.

THe Jonnson & Harpin Co.. LAW PRINTERS

CINCINNATI, OHn10

INDEX

Subject Index

PAGE

Brief for the Petitioner on the Merits ]

Statement of the Case 2

Specification of Firrors 6

Summary of Argument 7

Statement of the Questions Invelved q

Areument

lL. Courts of Equity Have Inherent Power to

Restrain the Prosecution of Vexatious and

Harassing Litigation, and It Is the Law of

Ohio That Its Citigens Are Subject to the

exercise of Such Power by [ts Courts

Il. The Federal Miiplovers” Luiabilitv. Act Nei-

ther fxpressiy nor by fmplication Forbids

This Mxeretse of Power by the Courts, nor

Boos It so Completely Cover the Field as

to Preelude the Appleation of State Law

bil. The History of the Amendment to Section 6

of the Federal Eiylovers’ Liability Act

Demonstrates Vhat Congress Did Not In-

tend to Bar the Mquttable Power of Courts

te Hestrain the Prosecution of Vexatious

sil dlarassing Litigation, and That the

kexercise of Such Power Wouid Be in Har

niony With the Purpose of the Net

iV. "bhe Restraiut oon Parts to a Suit Is Not

Tantamiount to the Restraint of the Court

Itself

V. The Facts in the Present Case Are Sufficient

to Invoke the Mquitabic Powers of a Court.

1!)

PAGE

VI. The Weight of Authority Supports the Right

to Injunction and the Supreme Court of

Ohio Erred in Holding Otherwise 26)

VII. The Authorities Relied Upon by the Supreme

Court of Ohio and the Respondent Do Not

Support the Judgment of the Court Below. 29

Error of Indiana and Ohio Courts in

Hoiding That) Federal Employers’

Liability Act Prevented Injunction of

Prosecution in Federal Court Bo

The Supreme Court of Ohio Erred in its

Interpretation of the Bryant Case ne

VIII. Whether the Conduct of an Ohio Citizen Is

Mquitable Is a Question of Law, Which sn

Ohio Court Having Jurisdiction of the Citi-

zen Is to Determine tm Accordance w'th

That Law Unless Congress within Its Dele-

gated Powers Has Made an Fnactment In-

consistent with the Ohio Law 38

Closing Summary 30

Table of Cases Cited

Alabama & Vicksburg Ky. Co. v. Journey, 207 U.S. 111. 26

Alspaugh v. N. ¥. C. & St. L. Ro Co. 9S Indiana App.

280, 188 N. KB. 864 af

B. & O. R. R. Co. v. Bathe, 112 Ohio St. 567, Sv. 2 Mt

B. & O. R. R. Co. v. Bole, 31 Fed. Supp. 22 28

B. & O. R. R. Co. v. Inlow ( Unreported——decision at-

tached to petition for certiorari) Po

Baltimore & Ohio Rd. Co. v. Kepner, 137 Ohio St. 206,

28 N. B. (2d) O86 i)

Baltimore & Ohio Rd. Co. v. Kepner, 137 Ohio St. 499,

30 N. E. (2d) Ys2 oy Dy Dy Dy oF

een ,

owe

PAGE

Blake v. MeClung, 172 U.S. 289, 256 36

Boston & M. R. R. v. Whitehead, 29. N. EB. (2d) 916 7,11

Bryant v. Atlantic Coast Line R. Co., 92 F. (2d) 569,

Stk, Can Reidec BF 8, 9, 22, 28, 34, 37

c.. M. & St. P. R. Co. v. Schendel, 292 Fed. 326, s. ¢.

30) Fed. 273 30

C.& O. Re. Co. v. Vigor, 90 F. (2d) 7 (C. CG. A. 6) 3]

CRO & P. Ry. Co. v. Schendel, 270 U.S. 611. 14

Central National Bank v. Stevens, 169 U. S. 432, 42

L. Kd. 807 32

Chambers v. B. & O. R. R. Co., 207 U.S. 142, 148 36

Chicago, M.& St. P. R. R. Co. v. MeGinley, 175 Wis. 565,

Iso N. W. 218 eee

Cole ve Cunningham, 165 U.S. Loe 7,11, 56

Connelly v. Central R. R. Co., 288 Fed. 932 30

Crandall, = parte, 53 F. (2d) 969 (C. C. A. 7), ¢. d.

PRD U.S. 540 Tee

Davis v. Farmers’ Cooperative Co., 262 U.S. 312,

8, 23, Zo, 2h

Dehon ve Foster, 4 Allen 545 (Mass.) 7,11

Denver & R. G. W. R. Co. v. Terte, 284 U.S. 284 8, 28, 24

Dickinson v. Stiles, 246 U.S. 631 i4

Doll v. C. Y. W. Ry. Co., 159 Minn. 323, 198 N. W. 1006. 14

Douglas v. N. Y., N. H. & H.R. Co., 279 US. re i, is

Erie R. Co, v. Tompkins, 304 U.S. 64 &, 24,58

Federal Trade Commission v. Bunte Bros., U.S. :

61S. C. R. 580, 582 7. 16

Harkrader v. Wadley, 172 U.S. 148, 48 L. Ed. 399, 19

s. Ct. 119 333

Heidritter v. Elizabeth Oil-Cloth Co., 112 U.S. 294, 305. 34

Helvering v. Hutchings, U.S. . U.S. Law Week

March 4, 1941, p. 4235 Is

iil

PAGE

Hines v. Davidowitz, [a . 4 & €: BB ae

$10) ; t> Secs

Hotfiian v.cMissourr ex rel. Foraker, 274 U.S. 21 3]

Kelly ve. Washington, 802 U.S. 1 7,10

Kern ve CLC.) & St. L. Ry. Co., 204 Indiana 595, 185

e e. 446 - yo — my

Kline v Shag Construction (o., 260.U. S. 226, 67 L.

Ed. 266, 43S. ('t. 79, 24 A. L. R. 1077 re

Klinge v. So.-Paec. Co., 65 BF. (2d) 85, «. d. 290 UL S. 657 14

IL. & NOR. Cofvv. Ragan, 172 Tenn. 593,113 S. W. uy

L. & N. R. Co.v. Stewart, 241 U. S. 261 14

Lee ve Cent. of Ga. ity. Co., 252 U. S. 109 14 j

Loftus v. Penn. R. Co. 107 Ohio St. 352 1+ |

}

Mo & St. L. RR. Co. v. Bombolis, 241 U.S. 211 13 |

Mo& S. L. RoR. Co. v. Gotsehall, 244 U.S. 66 3

Maurer ct al. ve Hamilton et al, 309 U.S. 598 7, 14

MeConnell vo Fhomson, 218 Indiana 16, 8 N. E. (2d)

St) . 22.33

Michigan Cents RL. R. Co, ve Mix, 278 U.S. 492, 73 LL.

Mad. 470 4, We ae

Milliken v. Mever, UC. &. , 61 8. (. B. 338 4 3s

Missouri ex rel, X. YY. Cc. & St. L. BR. RB Ceo. v. Norteoni,

331 Miss. 764,55 S. W. (2d) 272 +

Missouri ex rel St. Louis, B. & M. Ry. Co. v. Taylor, i

266 UL S. 20e- 3h

Missouri Pacifie R. Co, v. Clarendon Co., 257 U.S.

Sictah. abel 3H

Moran v. Sturgis, 194 U.S. 206, 38 L. Hd. 81, 14.8. Ct. ’

11g) i 32

NOY. CL & St. LoRd. Co. ve. Matzinger, 136 Ohio St. 271,

25 N. EL (2d) 849 7,8, 11, 24, 38

NOY. CC. & St. LOR. Ro Co. ve Perdiue, 97 Indiana App.

917, 187 N. BE. 849 27 >

PAGE

N.Y. N. H. & H. R. R. Co. ve. Murmann, 253 N. Y. S.

450, ¢. d., 288 U. S. 601 14

Norris v. Illinois Central R. R. Co., 18 F. (2d) 584 30

Palmer v. Webster & Atlas Bank of Boston, U. 8.

, 61S. CL R. 542, 545 ®

Prout v. Starr, 188 U.S. 537, 47 L. Ed. 584, 23 S. Ct.

308 33

Reed's Admx. v. Illinois Central R. R. Co., 182 Ky. 455,

206 S. W. 794 - .. 8,26

Reid v. Colorado, 187 U.S. 137, 148 7, 14

Riges v. Johnson Co., 6 Wall. 166, 18 L. Ed. 768 32

Roy v. Oregon S. L. R. Co., 55 Idaho 404, 42 Pac. (2d)

476, c. d., 296 U.S. 579 15

S.A. L. Ry. v. Kenney, 240 U.S. 489 13

Smyth vo Ames, 169 U.S. 466 33

Snook v. Snetzer, 25 Ohio St. 516 7,10, 11

Southern Ry. Co. v. Cochran, 56 F. (2d) 1019 30

Southern Ry. Co. v. Ethel Painter, Admrx., 117 F.

(2d) 100 29

Spoo v. CR. 1 & PL Ry. Co., 191 Iowa 1134, 188 N. W.

580 13

Steelman v. All Continent Corporation, 801 U.S. 27s,

29) 7, 8, 11, 21, 36

Taylor v. C. C. CL & St. L. Rd. Co., Mo. , 63S. W.

(2d) 69, ec. d., 290 U. S. 695 : 13

Thornton’s Federal Employers’ Liability Act, Third -

dition, Appendix B, pages 576, 580 8, 19

Trapp v. Baltimore & Ohio R. R. Co., 283 Fed. 65¢ 30

United States v. F. W. Darby Lumber Co., U. S.

, 61S. C. R. 451, 459 7,16

United States v. Gilliland, U. 8. 8 at. oe.

518, 522 1s

United States v. Pelzer, U.S. , U.S. Law Week

March 4, 1941, p. 4235 18

PAGE

Williams v. St. L. & S. F. R. R. Co., 85S. W. (2d) 624,

Mo. 14

Wood v. Delaware & H. R. Corp., 63 F. (2d) 235 30

Statutes Cited

(‘onstitution of the State of Ohio, Article IV, Section 6. 5

Federal Employers’ Liability Act, Section 6 as amended

(45 U.S. C. 56, 36 Stat. 291) 2, 4, 15, 18, 29, 40

Judicial Code, See. 51 18

Other Authorities Cited

28 American Jurisprudence 392, Sec. 206 36

28 American Jurisprudence 400, Sec. 217 oa ae

Congressional Record 45, Part 4, p. 4040 &, 19, 20

Pomeroy on Equity Jurisprudence, 3rd Ed., Vol. 4, See.

1360 7,10

Pomeroy on Equity Jurisprudence, 3rd Ed., Vol. 6, See.

670 7

‘

14R. CO. LL. 412, See. 113, Injunctions 36

Rules of Supreme Court of Ohio, 136 0, S. Rules of

Practice, p. LXXIT, Rule VI 4

never ~aage

Supreme Court of the United States

OCTOBER TERM, 1940

No. 678

THE BALTIMORE AND OHIO RAILROAD COMPANY,

Petitioner,

FREDERICK S. KEPNER.

BRIEF FOR THE PETITIONER ON THE MERITS

The first brief in support of the petition was prepared

in some haste due to the limitation of time preseribed by

the Supreme Court of Ohio in its stay order of December

20, 1940 (RL 37). Et is felt that counsel may be somewhat

more helpful to the court by a re-writing of that brief with

reference to ether authorities, some of which are decisions

rendered since that brief was prepared, and which it is sub

mitted support the contentions of the petitioner.

This brief seeks to reverse the judgment of the Supreme

Court of Ohio denying the petitioner’s application for an

injunction to restrain the respondent from prosecuting a

snit under the Federal Employers’ Liability Act, in a Fed-

erat District Court in the Eastern District of New York.

The court sustained the concention of the respondent and

based its denial solely because Section 6 of that Act pre-

vented it from eranting an injunction that otherwise would

have been eranted.

The opinion below is The Baltimore & Ohte Railroad

Company, Appellant, vo Kepner, Appellee, 1387 Ohio St.

409, BON. ba. (2d) 982, decided December 18, 1940, on Re-

hearing (R. 23).

STATEMENT OF THE CASE

The facts alleged in the petition for injunction (R. 1-5)

admitted by the demurrer, and assumed by the Ohio Su-

preme Court to support your petitioner's contention, and

substantiated by affidavits (R. 15-22), are these:

Resnondent was at the time of the accident and since has

been a resident of Hamilton County, Ohio (R. 1, 18). He

was employed by your petitioner and was injured on May

18, 19389, while so employed at East Middietown, Butler

County, Ohio, immediately adjoining Hamilten County to

the north (R. 1, 18). Petitioner operates lines of railroad

in both counties and has numerous agents in each upon

whom service can be made (R. 1, 18).

No suit has been filed by the respondent for his injuries

in Hamilton or Butler Counties or in the United States

District Court for the Southern Distriet of Ohio, all of

which courts are in constant session (R. 1, 2).

Respondent emploved Morris S. Borden and Samuel T.

Gaines, attorneys of Cleveland, Ohio, to represent him, each

of whom are engaged in general practice of law in Cleve-

land, and respondent failed to avail himself of the courts

immediately available and within a reasonable distance of

the residence of any and all of the witnesses necessary for

the trial, but by agreement and conspiracy among respond-

ent and his counsel proceeded to file suit in the United

States District Court for the Mastera District of New York

Mdward M. Batlerd and George Metzeer, attorneys on

Respondent ’s brief) are dot ecoutisel of record tu sated suit

filed the Rastern District of New York CR.) and aep-

peared for Respondent only otter the petition for injunction

was filed in the Common Pleas Court of Hamilion County,

Odio CR. 75.

To maintain its defense, petitioner will have to transport

hot jess than twenty-five withesse» (RL 2, 5,16), all of whom

reside ln Tlamilton or Butler Counties, Ohio, a distance of

over séven hundred mites CR. 2). These witnesses consist

of the cmplovees of petitioner, qumerous plysicits, sur:

veons, radiologists, liospital attendants and others who

cave him medical attention and numerous other non-

employee witnesses as to various essential elements

(3%. 2, 3).

The medical witnesses are highly important because the

nature and extent of Respondent's injuries are seriously

disputed. All of the others are important because liability

is disputed (BR. A, 38).

Petitioner would be totally deprived of its legal right of

process to force the attendance of witnesses in the United

States District Court. Eastern District of New York (R.3),

and they could net be compelled to attend a trial in New

York and such as would consent to do so would have to be

transported and maintained during the trial at great ex-

pense, which would be exceedingly heavy as to the medical

experts. This expense would exceed by $4,000 the cost of

the trial of the same issues ina court located near the rest-

dence of respondent R23). The emplovee witnesses are

eneaved in interstate traim service,

Tt ts impossible to anticipate all of the witnesses that

night he necessary and get them te the trial uf needed

(Ro 4.16017, 19). The presentation of testimony by depo-

sitions cannot effectively present to the court and jury the

facts invelved, petitioner being deprived of the right of

presenting the witnesses in person, and rebuttal evidence

would be impossible of procurement and submission (R. 4,

16, 17, 19).

Trials in the United States Distriet Court, Eastern Dis-

triet_ of New York, are assigned in numerical order and it

is Impossible to tell the exact day the case will start (R. 3,

16). Therefore, it would be necessary to have the witnesses

in New York a number of days prior to the probable date

of trial because of the lone distance involved (R. 3, 16).

When the case is called for trial both parties must be ready

to proceed forthwith.

Respondent conspired with his attorneys of Cleveland,

Ohio, to bring the action at a distant point for the purpose

of annoying, harassing and vexing the petitioner without

a sound and proper purpose of reasonably prosecuting any

rieht of action that respondent had against the petitione

(Roa), and the continued prosecution of the action in New

York weuld constitute an undue burden on interstate Corie

merce and would be an unreasonable, improper and imequi-

table burden upon the petitioner, and such unreasonable

and inequitable proceeding would result ino no benefit. te

the respondent (R. 4).

All of the foregoing facts were admitted by the demurrer

of respondent to be true.

The Court of Common Picas of Hamilton County, Ohio,

sustauimed a demurrer to the petition on the ground that the

injunction praved for would be in contravention of a right

vranted by the Federal Emplovers* Liability Net, as

amended, Tithe 45 U.S. CL. See. 56 (36 Stat. 291) (R. 11,

12). A copy of the Opinion of the court is Appendix A to

the Petition for Certiorari herein, page 11. :

On appeal to the Court of Appeals of the First Appellate

District of Ohio, that court did, from the bench, dismiss the

ihn Mel

Tel!

petition and deny an ajunmetion (R13), and that determina-

tion being im contiiet with a judgment hy the Court of

Appeals of the Second Appellate District pursuant to Arti

cle IV, Section © of the Constitution of the State of Olio

did thereupon certify said cause to the Supreme Court of

Ohio. There were two arguments in that court. in the first

argument tie court eventy divided. | 7/e Baltemore and

Oe ROR. Co, Appellant. Frederick S. Repuer, Appelles ,

137 ©. S. 206, 28 XN. E.

(Pd) S86} OR. SS). Thereafter, the

courtoon October 2. 1940, granted a rehearing CR. 37) and

affes rearguinent said court again affirmed the judement

below an oan option rendered December Ts, To40. [157

OS. 409 SONS BL (2d) Gs2.) On December 2uth that court

cranted the petitioner a stay aud dijunetion order CR. oe).

The Supreme Court of Ohio assumed that the equities

alleged and admitted by demurrer were sufficiently great

lo warrant the granting of an injunction except that the

Federal Eaeplovers’ Liability Act barred the Ohio State

courts from: issuing an injunetion against its citizens from

proceeding in any Federal Distriet Court, in which district

the defendant shall be deme business.

It was the contention of your petitiener that Congress

did not expressly prohibit a court of a state from exercising

its equitable jurisdiction over its citizens, that Congress

merely gave the employee the right fo sue concurrently in

a state or federal court where the emplover was doing

business, that Congress could be presumed to have known

that a court of equity had jurisdiction to prevent citizens

of its jurisdiction from unjustly harassing and oppressing

others by bringing suits at a point farthest away from the

residence of the employee and the situs of the accident and

chat as Congress did not expressly prohibit such equitable

action a State court could restrain citizens of that state

from such harassment in accordance with the well-founded

principles of equitable jurisprudence.

The Supreme Court of Ohio by its said opinion rejected

these contentions holding that Section 6 of the Federal Kkm-

plovers’ Liability Act gave the injured employee the privi-

lege of bringing his action in the District Court in any

district, however remote, in which the defendant was doing

business, When sued, and that the courts were without power

to prevent his arbitrary and unreasonable choice of the

farthest district from the scene of the accident and _ resi-

dence of the plaintiff, no matter how inequitable such choice

might be,

SPECIFICATION OF ERRORS

Your petitioner submits that the Supreme Court of the

State of Ohio was in error in the following respects :

1. The Supreme Court of Ohio erred in affirming the

judgment ef the Court of Appeals and of the Court of

(Common Pleas, and in not reversing the Court of Appeals

and the Court of Common Pleas.

2. The Supreme Court of Ohio erred in failing to enjoin

permanently the Respondent from presecuting his suit

pending in the United States District Court for the Eastern

District of New York.

3. The Supreme Court of Ohio erred in its interpretation

of the Federal Emplovers’ Liability Act.

4. The Supreme Court of Ohio erred in construing the

Federal Employers’ Liability Act as preventing the courts

of Ohio from enjoining a citizen of that state within the

court's jurisdiction from prosecuting an action under that

Act in a Federal court so distant, and under such cireum-

stances, as under the law of Ohio constituted vexatious,

harassing, inequitable conduct subject to injunction.

5. The Supreme Court of Ohio erred in holding that the

question involved was one of denying or interfering with

the jurisdiction of the Federal courts.

6. The Supreme Court of Ohio erred in not applying the

law of Ohio in determining what conduct of its own citizen

AO ORIN Oe

was inequitable and subject to the injunctive power of the

courts of that State.

SUMMARY OF ARGUMENT

Courts of equity have inherent power to restrain the

prosecution of vexatious and harassing litigation, and it is

the law of Ohio that its citizens are subject to the exercise

of such power by its courts.

Pomeroy’s Equity Jurisprudence (3rd Ed., Vol. 4, See.

1360) (Vol. 6, See. 670) ;

Snook v. Snetzer, 25 Ohio St. 516;

N.Y.C. & St. L. R. R. Co. \. Matzinger, 136 Ohio St.

271, 25 N. E. (2d) 349;

Cole v. Cunningham, 133 U.S. 107;

Delon v. Foster, 4 Allen 545 (Mass.) ;

Steelman v. All Continent Corp., 8301 U.S. 278, 291;

Boston & M.R. Rov. Whitehead, 29.N KE. ond 916 (and

cases cited).

If.

The Federal Employers’ Liability Act neither expressly

nor by implication forbids this exercise of power by the

courts, nor does it so completely cover the field as to pre-

clude the application of state law.

Douglas v. N. Y., H. d N. H.R. Co., 279 U.S. 377;

See list of cases, brief pages 13, 14.

Maurer et al. v. Hamilton et al, 309 U.S. 598.

Reid v. Colorado, 187 U.S. 137, 148.

Federal Trade Commission v. Bunte Bros., U. S.

61S. C. R. 580, 582.

United States v. F. W. Darby Lumber Co., U. S.

, 61S. C. R. 451, 459.

Ilines v. Davidourtz, DD, , 61S. C. R. 399, 410;

Kelly v. Washington, 302 U. bub 1;

Michigan Cent. R. R. Co. Mir, 278 U. S. 492, 73

L. Ed. 470.

[11.

The history of the amendment to Section 6 of the Fed-

eral Enapiovers’ Liability Act demonstrates that Congress

did not intend to bar the equitable power of courts to re-

Strain the prosecution of vexatious and harassing litigation,

and that the exereise of such power would bein harmony

with the purpose of the act,

Prelims i Webster ' Lltlas Bak of I steri, - Ss.

i Sth He ade. i).

Thornton's Federal inplovers” Laiability Act, Vhird

dition, Appendix Boat page 976, O80.

(Coneressional Record 45, Part 4, page 4040.

IV.

The restraint of a party to a suit is not tantamount to

the restraint of the court itself.

Steelman Vv. A Contin it Corp., wt i. &. 2s, BM:

Brouant vo Atlantic Coast Line RL Co. 92 BF. (2d) 569,

The facts in the present case are sufficient to invoke the

equitable powers of a court.

Bod OL Rd. Cory. Kepner, 137 Ohio St. 409 CR. 23).

Davis, Director General vy. Farmers” Cooperative Co,

262 U. 8S. 342.

Michigan Central ROR. Co. y. Mia, 278 UL oS. 492.

Denver d& ROG WR. Co. vv. Terte, 284 U.S. 284.

N.Y. C. d St. L. Rd. Co. ve Matzinger, 126 Ohio St.

241.

Brie RL Coov. Tomphins, 804 U.S. 64.

The weight of authority supports the right to injunction

and the Supreme Court of Ohio erred in holding otherwise. _

Revd’s Admra. ve lineis Central R. R. Co... 182 Ken-

tucky 455, 206 S. W. 794.

_ ee

a ae

ee or

Seo numerous other state cases at page 27 of brief.

Ba Parte Crandall, 53 F. (2d) 969 (0. CL AL 7), ed.

Yso U.S. 540.

Besant ve Atlantic Coast Line Ro Co. 92 BL 62d) 569,

ens

The authorities relied upon by the Supreme Court of

Ohio and the Respondent do not senport the Judgment of

the court below.

=. — AR NE SO A:

VILE.

Whether the conduct of an Ohio citizen is equitable is

a question of law, which an Ohio court having Jurisdiction

of the citizen is to determine in accordance with that law

unless Congress within its delegated powers has made an

enactment inconsistent with the Ohio law.

Millikin ve Mener, ee, , 61 8 ¢’. R. 339

STATEMENT OF THE QUESTIONS INVOLVED

The rule of the Supreme Court of Ohio is that the syl-

labus which is by the court states the law of the case, 136

O.S. Rules of Practice, Page LNXIT, Rule VI. It is to be

read in the light of the facts as stated in the opinion. Rule

VI. See also The Bod O. Rd. Co. v. Baillie, 1142. Ohio St.

567, Syl. 2. The syilabus of the opinion below réads:

‘The State courts ef this State cannot, in the exer-

cise of their equity powers, enjoin a resident of the

State from prosecuting a cause of action, arising under

the Federal Employers’ Liability Act, in a Federal

Court of another State having jurisdiction of such

action, even though such cause of action arose and may

be prosecuted in this State, and even though its prose-

cution in the Federal Court of another State may cause

great inconvenience and expense to the defendant.’’

Your petiticier contended below that there is nothing in

the Federal Act to prevent a State court from enjoining a

citizen of that State from prosecuting an action under the

Federal Act, whether in a State or Federal Court, where

that prosecution would, under the circumstances, be in-

equitable, harassing, vexatious and contrary to the best in-

terests of justice. And that the venue provisions of Section

6 of the statutes did not permit the employee to exercise

his right of choice between the various jurisdictions avail-

able to him in an inequitable manner.

The respondent contended that under the Federal Act

he could not be restrained from such prosecution in any

Federal District Court in whose district the railroad did

business, even though such prosecution would be in viola-

tion of the equitable principle just referred to.

It is submitted that the Ohio Courts erred in sustaining

respondent's contention.

ARGUMENT

I. Courts of Equity Have Inherent Power to Restrain the

Prosecution of Vexatious and Harassing Litigation,

and It Is the Law of Ohio That Its Citizens Are Subject

to the Exercise of Such Power by Its Courts

This power, we submit, is inherent in all Courts, State as

well as Federal. The author in Pomeroy’s Equity Juris-

prudence (3rd Ed. Vol. 4, See. 1360) says:

The use of injunctions to stay actions at law was

coeval with the establishment of chancery jurisdiction.

Without this means of interference to protect the

rights of its suitors, the court of chancery could never

have established, extended, and enforced its own juris-

diction.”’

In Snook v. Snetzer, 25 Ohio St. 516, the court enjoined a

citizen from prosecuting an attachment in West Virginia

okay 2S ers oh aed

5 eiclabald

Tet ee

against another Ohio citizen whose earnings Were exempt

“in Ohio but not in West Virginia.

In VL YL Cl d sto lL. RL R. Co. vy. Matzinger, 186 Ohio St.

M71, ON. EB. (2d) 349, the syllabus, by the court, reads:

‘A Court of equity may restrain a person over wliom

it has jurisdiction from bringing or maintaining in a

foreign State an action for the purpose or with the

effect or unduly harassiig or oppressing the defend-

ant, or securing to the plaintiff some unfair, uncon

scionable or inequitable advantage.”’

Snook v. Snetzer, supra, was cited with approval by this

court in Cole ve. Cunningham, 133 U.S. 107, an authority

recognized throughout the decisions bearing upon the equi-

table principle involved. In Cole v. Cunwmaham, this court

followed Dehon ve Foster, 4 Allen 545 ¢(Mass.), and at the

middle of page 124 said:

“*Dehon ve Foster, + Allen, 545, is the leading case

upon the subject, argued by eminent counsel on both

sides, and decided upon great consideration. The Su-

preme Judicial Court) of Massachusetts, speaking

through Bigelow, C.J., points out that the jurisdiction

of a Court, as a court of chancery, to restrain persons

Within its jurisdiction from prosecuting suits, upon

proper case made, either in the Courts of Massachusetts

or in other States or foreign countries, rests on the

clear authority vested in Courts of equity over persons

within the limits of their jurisdiction and amenable to

process, to stay acts contrary to equity and good con

science; and that, as the decree of the Court in such

cases is directed solely at the party, it is wholly imma.

terial that such party is prosecuting his action in the

courts of another State or country.”’

Cole v. Cunningham was last cited by this court in 1936,

in Steelman vo AU Continent Corp., 301 U.S. 278, 291.

In a recent case decided by the Supreme Court of Mass-

achusetts, Boston d& MR. Rov. Whitehead, 29. N. FE. (2d)

16, at O17:

“There is no doubt that where a sufficient equity is

shown courts of this Commonwealth have the same

power to enjoin persons subject to their control from

prosecuting suits in other States that they have to en-

join them from prosecuting suits in this Common-

wealth, Delon vo Foster, 4 Allen, 44, 550; Cunningham

v. Butler, 142 Mass. 47, 6 N. EF. 782, 56 Aim.Rep. 657;

Carson ve. Dunham, 149 Mass. 52, 20 N. BE. 312. 3

1. R.A. 202, 14 Am St. Rep. 897; Columbian National

Life Ins. Co. v. Cross, 298 Mass. 47, 52, 9 N. E. (2d)

402; Lydia bE. Pinkham Medicine Co. v. Gove, 208 Mass.

oo, 66,9 NE. (2d) 5738; Cole ve Cunningham, 133 U.S.

107, 10S. Ct. 269, 538. Ed. 538."

In that case the facts show that the suit was brought under

the Federal Employers’ Liability Act but that the place of

bringing the suit, though ina foreign state, Was only ninety-

one miles trom the scene of the accident and the court held

that there was not a suficient equity showing to warrant

the granting of an injunction.

II. The Federal Employers’ Liability Act Neither Expressly

nor by Implication Forbiis This Exercise of Power by

the Courts, nor Does It so Completely Cover the Field

as to Preclude the Application of State Law

There is nothing in the Aet expressly prohibiting the ex-

ercise by the State Courts of their equity powers in a mat-

ter of this kind. There have been numerous cases decided

bys this court and the courts of last resort of various states

where the contention has been made that the Federal lim-

plovers’ Liability Act was complete and all-inclusive and

that the state courts had no rignt to interpose interpreta-

tions which would conform to the practice in such state.

The following list of cases shows that the Aet has not been

held to be all-inclusive and complete in itself and that there

are many wavs that the state can act and follow its law

under the Federal Act.

perenne -mnoe

Be)

bee |

1 ge

eis

»e

In Douglas ve N.Y, Hod N. H.R. Co., 279 U.S. 377, the

question was as to the right of a Connecticut citizen, where

the accident happened ‘n Connecticut, suing under the Fed-

eral Act ina New York state court, a Connecticut corpora-

tion, doing business in ew York. This court invoked a

New York statute that authorized the state courts to dis-

miss the action. The last paragraph of the opinion, page

O87, reads:

‘As to the grant of jurisdiction in the Employers’

Liability Act, that statute does not purport to require

State Courts to entertain suits arising under it, but

only to empower them to do so, so far as the authority

of the United States is concerned. It may very weil

he that if the Supreme Court of New York were given

no discretion, being otherwise competent, it would be

subject to a duty. But there is nothing in the Act of

Congress that purports to force a duty upon such

Courts as against an otherwise valid exeuse. Second

Employers” Liability Cases, 223 U0. S.1, 56, 57."

A State Court may order a conditional remittitur of

damages. Roy v. Oregon S.L. R.Co., 55 Idaho 404, 42 Pac.

(2d) 476, e. d. 296 U.S. 579.

States retain full control over administrators and ex-

ecutors appointed by its Conrts. Spoo vo Co ROT & PL Ry.

('o.. 191 Towa 11354, 183 NW. S850.

State procedure is sustained even though perjury of wit-

nesses is proved. Taylor vo CC. C2 d& StL. Rd. Co.,

Mo. . 63S. W. (2d) 69, &. d., 290, U.S. 695,

The states may sav whether the jury shall be unanimous

or whether nine or less may return a verdict. Mod St. 1. R.

Ro Cory. Bombolis, 241 U.S. 211.

The states may decide who are the next of kin. S. 4. 1,

Ru. v. Kenney, 240 U.S. 489.

The states may decide who is a beneficiary. Mo € So. R.

PR. (nH, ¥, Gotschali, 244 U.~ S. 66.

The states may determine the rate of interest on judg-

ments. VL, NM. WW. R. RR. Co. vy. Murmann, 253 N.Y.

S. 450, ¢. d. 288 U.S. 601.

The states may decide what constitutes serviee of sum-

mons. Alige v. So. Pace. Co., 65 F. (2d) 85, «& d. 290 UL.

607.

The states may decide these cases under the state rules

of pleading. Williams v. St. L. dS. FB. RR. Co., 85 S.W.

(Yd) 624, Mo.

An award under a state compensation law is a bar to a

judgment ina suit under the Act. CR. d& PL Ry. Co. v.

Schendel, 270 U.S. 611,

The state may prohibit a suit under the A¢t jointly

against a railroad and a fellow emplovee. Lee v. Cent. of

Gra. Ry. Co,, 252 U.S. 109,

A state venue statute was sustained in an action under

the Federal Act. Loftus v. Penn. R. Co., 107 Ohio St. 352;

Dolly. CL Y¥. WW. Ry. Co... 159 Minn. 323, 198 N. W. 1006,

A state statute for a lien for an attorney’s fee held good

in-an action under the Aet. Dickinson v. Stiles, 246 U.S.

O31.

A state statute providing a penalty for a frivolous appeal

was sustained. Lod N. BR. Co. v. Stewart, 241 U.S. 261.

Kmplovees always had a right to sue a railroad for neghi-

gence, When Congress passed the Statute it knew that the

courts fad inherent power to enjoin citizens from maintain

ing harassing litigation. In Waurer et al. v. Hamilton et

al., 309 U.S. 598, this court, top of page 614, said:

‘\s a matter of statutory construction Congres-

sional intention to displace local laws in the exercise

of the commerce power is not, in general, to be inferred

unless clearly indicated by those considerations which

are persuasive of the statutory purpose.”’

The same principle was expressed by Mr. Justice Harlan in

Reid vy. Colorado, WT USS. 187, 148:

ee ig ae my

ne KeOAR ab Nariel a

‘*) . . It should never be held that Congress intends

to supersede or by its legislation suspend the exercise

of the police powers of the States, even when it may

do so, unless its purpose to effect that result is clearly

manifested. This court has said—and the principle has

been often reaffirmed—that ‘in the application of this

principle of supremacy of an act of Congress in a case

where the State law is but the exercise of a reserved

power, the repugnance or conflict should be direct and

positive, so that the two acts could not be reconciled

or consistently stand together.’ Sinnot v. Davenport,

22 How. 227, 243.”’

The controversy in this case relates solely to the effect

of the Amendment made April 5, 1910, to Section 6 of the

Federal Employers’ Liability Act, in these words:

‘Under this chapter an action may be brought in a

district court of the United States, in the district of

the residence of the defendant, or in which the cause

of action arose, or in which the defendant shall be

doing business at the time of commencing such action.

The jurisdiction of the courts of the United States

under this chapter shall be concurrent with that of the

courts of the several states, and no case arising under

this act and breught in any State court of competent

jurisdiction shall be removed to any court of the United

States.”’ (Apr. 5, 1910, ¢. 143, See. 1, 36 Stat. 291, 45

U.S.C. Seetion 56.) -

The question is, did Congress by this language take away

from the state courts having jurisdiction over a claimant

under the act resident in the jurisdiction of that court, the

power to enjoin him from prosecuting his claim in a distant

federal court, when such action is so brought for the pur-

pose of.inequitably harassing and vexing the defendant,

which power of injunction is a recognized power in the

state court under law of the state of claimant’s residence.

This court has within the last few months had several

occasions to determine the question of whether federal

power granted under acts of Congress excluded powers of

a state. As said by Mr. Justice Frankfurter in Federal

Trade Commission v. Bunte Bros., ULS. 61 S.C. R.

O80, SRL:

‘*When in order to protect interstate commerce Con-

gress has regulated activities which in isolation are

merely local, it has normally conveyed its purpose ex-

plicitly. . . . the construction of every such statute

presents a unique problem in which werds derive

vitality from the aim and nature of the specifie legisla-

tion. But bearing in mind that in ascertaining the scope

of congressional legislation a due regard for a proper

adjustmenc of the local and national interests in our

federal scheme must always be in the background, we

ought not to find in See. 5 radiations beyond the ob-

vious meaning of language unless otherwise the pur-

pose of the Act would be defeated.’

And as said by Mr. Justice Stone in United States vo FLV,

Darby Lumber ¢€'o., * S. . 61S. (", R. 451, 459:

‘In the absence of congressional legislation on the

subject state laws which are not regulations of the

commerce itself or its instrumentalities are not for-

bidden even though they affect interstate commerce."’

Mr. Justice Stone also said in his dissenting opinion in

Hines ve Daridowit:, t'. &. » 61S. CL R. 899, 410:

‘Every Act of Congress occupies some field, but we

must know the boundaries of that field before we car

say that it has precluded a state from the exercise of

any power reserved to it by the Constitution. To dis

cover the boundaries we look to the federal statute

itself, read in the light of its constitutional setting and

its legislative history."

Mr. Justice Black in the same case, in rendering the opinion

for the court said, at page 404;

‘

“Our primary function is to determine whether

under the circumstances of this particular case, Penn-

xylvania‘’s Iaw stands as an obstacle to the aeccomplish-

ment and execution of the full purposes and objectives

of Congress."’

In Kelly vo Washington, 3802 U.S. 1. Mr. Chief Justice

Hughes at page 10 said:

There is no constitutional rule which conipels Con-

eress to occupy the whole field. Congress may circum.

seribe its regulation and oceupy only a limited field.

When it dees so, state regulation outside that limited

field and otherwise admissible is not forbidden or dis

placed. The principle is thoroughly established that

the exereise by the State of its police power, which

would be valid if not superseded by federal action, is

superseded only where the repugnance or conflict is so

‘direct and positive’ that the two acts cannot ‘be recon

ciled or consistently stand together.” ™

We contend that there is nothing in the Act to show that

Congress intended to nullify the equity powers of the state

courts In cases arising under the Act,

Congress, as much as the courts, must have realized that

the broad venue provisions of the act might result in in-

equitable use of such provisions and have left the courts

unfettered to prevent by injunction such inequitable action.

The injunction would not have deprived the respondent

of any right specifically granted by the Act. Tt reads, ** An

action may be brought in a District Court of the United

States in the distriet ... in which the defendant shall

he doing business at the time of commencing such action.”

Notwithstanding the injunction he still could sue in the dis-

trict in which the defendant shall be doing business con-

venient for him and all parties. The statute does not say

he can sue in any district in which the defendant shall be

doing business, although the Supreme Court of Ohio and

other courts have erroneously assumed that Congress in-

tended ‘‘the district’? to mean ‘‘any district.’’

This court prohibits actions under the Act in state courts

if the business in that jurisdiction of the defendant is only

the maintenance ci an office for solicitation where the

prosecution thereof would burden interstate commerce and

no reason is apparent for a distinction were the selected

tribunal a federal distriet court. Michigan Cent. R. R. Co.

v. Mir, 278 U.S. 492, 73 L. Bid. 470.

III. The History of the Amendment to Section 6 of the Fed-

eral Employers’ Liability Act Demonstrates That Con-

gress Did Not Intend to Bar the Equitable Power of

Courts to Restrain the Prosecution of Vexatious and

Harassing Litigation, and That the Exercise of Such

Power Would Be ‘n Harmony with the Purpose of the

Act

The history of the Act demonstrates that Congress did

not intend to bar the equitabie remedy now contended for,

and that such remedy would be in liarmony with the pur-

pose of the Act. The history and purposes of the Act (25

U.S. Cl, Section 56) are clearly shown in the Committee

reports in support of the bill. To such reports this court

frequenfly resorts to determine the purposes of legislation :

Palmer ve. Webster & Atlas Bank of Boston, U.S.

, 61S. CL. R. 542, 545;

United States vy. Gilliland, U.S. , 618. C. R. 51s,

joo .

Helvering v. Hutchings, U.S. , U.S. Law Week

March 4, 1941, page 4233;

l’nited States v. Pelzer, U.S.

March 4, 1941, page 4295,

, U. S. Law Week

The Federal Employers’ Liability Aet as adopted in 190s

was subject to the limitations of Section 51 of the Judicia!

Code requiring an action in a federal court founded on a

federal statute, to be brought in the distriet of which the

claimant was an inhabitant, and in Connecticut it was held

eee, 7 |

that the Act could only be enforced in the federal courts,

and did not apply to actions brought in a state court. The

reasons for the amendment are fully stated in the Senate

Report, March 22, 1910, to accompany H. R. 17268, sub-

mitted by Mr. Borah from Committee on Judiciary. It is

printed as Appendix B in Thornton's Federal Employers’

Liability Act, Third Edition, at page 576. At page 580 is

quoted that part of President Taft's message of January 7,

I, relating to the necessity of amendment, With respect

to the place where suit could be brought he said:

“The question has arisen in the operation of the

interstate commeree employers’ liability act as_ to

whether suit can be brought against the employer cot

pany in any place other than that of its home office.

The right to bring the suit under this act should be

as easy of enforcement as the right of a private person

not in the company’s employ to sue on an ordinary

claim, and process in such suit should be sufficiently

served if upon the station agent of the company upon

whom service is authorized te be made to bind the com-

pany in ordinary actions arising under state laws.

Bills for both the foregoing purposes have been con-

sidered by the House of Representatives, and have

been passed, and are now before the Interstate Com

merce Committee of the Senate. T earnestly urge that

they be enacted into law.”’

Following the quotation from the President’s message, the

| x

report of the committee continues, as follows:

“AMENDMENT AS TO JURISDICTION--PLACE

WHERE SUIT MAY BE BROUGHT.

This amendment is necessary in order to avoid great

inconvenience to suitors and to make it unnecessary

for an injured plaintiff to proceed only in the jurisdic

tion in which the defendant corporation is an ‘inhabi-

tant.’

This is held by the courts to be the jurisdiction in

which the charter of the defendant corporation was

issued. This may be at a place in a distant State from

the home of the plaintiff, and may be a thousand miles

or more from the piace where the injury was ocea-

sioned.

The extreme difficulty, if not impossibility, of a poor

tian Who is injured while in railroad employ, securing

the attendance of the necessary witnesses at such a

distant point makes the remedy given by the law of

little avail under sach circumstances.

* * e o *

No argument is necessary to convince that this is a

erave injustice to the plaintiff.

Such an embarrassing situation oaght not to be per

mitted to exist where any plaintiff is proceeding in a

Federal court ona right based on the law of the United

States.

But to permit it to be a practical barrier to the main-

tenance of an action for death or personal injuries of

emplovees who may be presumed to be unable to meet

the expense of presenting this case ia jurisdiction far

from their homes would be an injustice too grave and

serious to be longer permitted to exist.”’

The repert ts foeand in Congressional Record No. 45, Part

4, Paxe 4040, The quotation from: President Taft's special

message is found in the second column of page 4041.

fi is seen that the whole purpose of the amendment was

to enable the plaintiif-emplovee to bring his snit at a place

convelent for him. In the language of President Taft, bis

right ‘tshould be as easy of enforcement as the right of a

private person not in the company's employ to sue on an

ordinary claim, and process in such suit should be suffi-

ciently served if upon the station agent of the company

upon whom service is authorized to be made to bind the

company in ordinary actions arising under state laws."’

Manifestly, there was no intention to secure to the claimant

a right to do that which consiituted the injury against

which he was being protected uncircumscribed by the equi.

table jurisdiction to restrain an inequitable-exercise of 4

Plea

legal right. The intention was to give him the same, and

no greater, right than the ordinary litigant who is not

allowed to exercise his rights im an inequitable manner. Ile

could bring his action in a state or federal court where,

because of the doing business by the defendant railroad,

service could be had. But there was no declaration by Con-

eress that he had a right to bring his action in every such

court. ‘Phe power to restrain the inequitable election of

courts was not interfered with, either explicitiy or by im-

plication.

Certainly it cannot be said that the application te this

case of the principle of law established in Ohio, of enjoining

an inequitable and harassing prosecution of a suit for dam-

ages in a distant court, would, in the language of Mr.

Justice Black ‘stand as an obstacle to the aecomplishment

and execution of the full purposes and objectives of Con-

eres." Hines v. Davidowitz, supra,

IV. The Restraint of a Party to a Suit Is Not Tantamount

to the Restrairt of the Court Itself

It is not and never bas been contended by the Petitioner

that an injunetion by the Supreme Court of Ohio would

in any way interfere with or impair the jurisdiction of the

District Court of the United States for the Kastern District

of New York. The action was only to enjoin the respond-

ent, who is a citizen of Ohio and subject to the jurisdiction

of the Common Pleas Court of Hamilton County, Ohio, on

the ground that he was using a legal process in an inequi-

table, unconscionable and vexatious manner by proceeding

with his action brought in that distant court. The ianguage

of Mr. Justice Cardozo in Steelman yv. All Continent Corp.,

301 U.S. 278, 290, is appropriate. He said, omitting cita-

tions:

“The trustee does not challenge the jurisdiction of

the federal court in Pennsylvania, if the word jurisdic-

tion be taken in ifs strict and proper sense. Tle is not

secking a writ of prohibition directed to the court it-

self. Ele is net seeking an injunction to vindicate his

exclusive coutrol over a res in his possession, or in the

possession, actual or constructive, of the court that ap-

pointed hin. What he seeks is an injunction directed

to a suitor, and net to any court, upon the ground that

the suitor is misusing a jurisdiction which by hypothe-

sis exists, and converting it by such misuse into an in-

strument of wrong. Suits as well as transfers may be

the protective coverings of fraud. We are unable to

vield assent to the statement of the court below that

‘the restraint of a proper party is legally tantamount

to the restraint of the court itself." The reality of the

distinction has illustration in a host of cases.’’

Judge Learned Hand, for the Cireuit Court of Appeals,

Second Circuit, in Bryant v. Atlantic Coast Line R.Co., 92

I. (2d) 569, at page 571, near the end of the second column

sald:

‘For the Virginia suit was based upon the notion

that plaintiff was using inequitably a legal right-—-the

right of action under the Federal Employers’ Liability

Act-—just as he might use the legal title to land in-

equitably.’

We submit that Congress did not grant the employee a

Federal right te do an inequitable thing and one which

equity would enjoin but for the Act. The granting of an

injunction by Ohio courts would not deny the respondent a

Federal right because Congress has not given a right to

bring an inequitable action. To express it differently, Con-

gress has not attempted either expressly or by implication

to deprive the State courts of their jurisdiction in equity.

The State of Ohio is a sovereignty having inherent rights

to control its citizens from maintaining unjustly harassing

and vexatious litigation. That inherent right was not ex-

pressly denied in the Federal Act and unless expressly

denied the statute must be strictly construed against a

denial of such right by implication.

V. The Facts in the Present Case Are Sufficient to Invoke

the Equitable Powers of a Court

This court is familar with the serious burden on inter-

state commerce from the prosecution of tort) cases in

reniote jurisdictions. Davis, Director General vo Farmers’

Cooperative Co, 262 U.S. 312; Michigan Central RL R. Co.

Vv. Mir, 278 UL S. 492. Tt is held that sneh burden to inter-

staie commerce bars the prosecution of such suits. in

Denver & ROG WLR. Coov. Terte, 284 US. 284, the Court

held that such burden on interstate commerce is not a bar

to the prosecution of an action under the Federal Employ-

ers’ Liability Act ina jurisdiction where the defendant rail

road owns and operates railroad lines. There is presented

in this case something more than mere burden on interstate

commerce. It is alleged that the Ohio plaintiff, Nepner,

and bis Ohio counsel conspired to bring his action in the

Rastern District of New York for the purpose of annoving,

harassing and vexing petitioner herein, the railroad com-

pany, without a sound and proper purpose of reasonably

prosecuting any right of action that Kepner may have

against the railroad company. Brooklyn, New York, where

the action is pending, is eight hundred miles trom the scene

of the accident and seven hundred seventy-five miles from

the residence of Kepner. The railroad) company has

twenty-five witnesses, all in Hamiiton and Butler Counties,

Ohio, none of whom are subject to subpoena in the pending

action. It has never been claimed that Kepner has any

Witnesses other than those in Ohio. It is impossible to

ascertain in this District Court a definite time of trial and

it would be necessary to be ready for trial and the railroad

conipany have its numerous witnesses in New York several

davs betore the probable date of trial and to be maintaines

there for all of the said period, in addition to the time

necessary for the trial itself, and the actual cost would

exceed that in a jurisdi* on adjacent to the accident or

residence of Kepner by at least $4,000,

The inequity in this proscention exceeds the inequity in

the case of MOY Cla StL. Rd. Co. vy. Watzinger, 136 Ohio

St. 271, and that in Dewveer dt ROG. WL. OR. Co. ve Terte,

supra, This court will take judicial notice, as did the Ohie

Supreme Court in the Jfafzmager case, of the fact that the

presentation of evidence by deposition is unsatisfactory

and also of the fact that it is obvious that rebuttal evidence

weuld be Impossible of procurement and submission.

Where there is a large number of physicians and surgeons,

as is the case herein, amore than usual amount of expense

and annovan.e is involved especially where such witnesses

have to travel a long distance and be maintained a long

and extended period of time awaiting opportunity to

testify. It might, indeed, be impossible to get them to leave

their patients to so testify,

The Ohto courts below were asked to reeulate the con

duct of an Ohio citizen in accordance with the law of the

State as declared by its Supreme Court) governing his

action with respect to the prosecution of actions of this

character. What constitutes proper conduct of a citizen

of Ohio is determinable by the laws of Ohio. The Su

preme Court of Ohio below (R. 25) said:

We may, therefore, assume that the equities shown

hy the petition favor the contention of the plaintiff and

it remains only to be determined whether the petition

is otherwise sufficient to state a cause of action.’’

This court has pointed out In Brie RL Co. v. Tompkins, 304

U.S. 64, that the law of a State is that contained in the

decisions of its courts as well as in its statutes and that the

laws of the State are as biadine on the Federal courts as

on the State courts.

When one considers the tremendoiis aniount of ditigation

that goes on under the Federal Maplovers® Liability Net

}

shied the possibility of the tremendous imerease di the cost

bot of tine gid money in such Htteation if it be the las

that the plamtuds therein nav resort to the Distret Court

of the United States having jurisdtetion farthest removed

Pret the plamtitl’s residence and the scene of the aeeident,

tonust be concluded that there hein the courts an adequate

POPU fe prevent steel oiuse of the mere right of vente.

li, as the court said in the Davis ve Farmers Cooperative

Col case, supra, suits against carriers, especially at far dis

tant points, is an undue burden on interstate carriers, then

tis all the more a burden and an liarassment to lave rail

read emplovees at the present tine carried far distances,

as here, and kept from their work for a long and indefinite

period attending the trial, when they should be at work as

sisting transportation due to the emergeney confronting

the country today, as is evidenced by the numerous recent

ehactments of Congress, of which, we submit, the court

must take judicial notice.

Even since the filing of the petition and the supporting

brief herein the pressure on the transportation facilities of

the railroads has measurably increased. The necessity of

conserving man power for duties essential to the defense

program makes it Increasingly important that the time and

energies of the employees of the railroads of this country

he not needlessly expended in attending the trial of cases

many hundreds of miles distant from the place of their

duties. A decision by this court of this petition favorable

to the petitioner would be in the interest of the national

economy, and, we submit, in harmony with the Act of Con

vress, as well as in harmony with the views of this court

<ti

the time of a prior emergeney in Daris v. Farmers Co-

vperative Co., 202 U.S. 312, 315, where Mr. Justice Bran-

deis said:

VI.

“That the claims against interstate carriers for per

sonal injuries and for loss and damage of freight are

numerous; that the amounts demanded are large; that

In many cases carriers deem it imperative, or advis

able, to leave the determination of their lability to the

courts; that litigation in States and jurisdictions re-

mote from that in which the cause of action arose

entails absence of employees from their customary

occupations; and that this impairs efficiency in opera

tion, end causes, directly and indirectly, heavy ex-

pense to the carriers; these are matters of common

knowledge. Facts, of which we, also, take judicial

notice, indicate that the burden upon interstate car

riers imposed specifically by the statute here assailed

is a heavy one; and that the resulting obstruction te

commerce must be serious. During federal contre]

absences of employees incident to such litigation were

found, by the Director General, to interfere so mueli

With the physical operation of the railroads, that he

issued General Order No. 18 (and IRA) which re-

quired suit to be brought in the county or district

where the cause of action arose or where the plaintiff

resided at the time it accrued. That order was held

reasonable and valid in Alabama & Vicksburg Ry. Co.

ve Journey, 257 U.S. 111. The facts recited in’ the

order, to Justify its issue, are of general application, in

time of peace as well as of ¥ or.”

The Weight of Authority Supports the Right to In-

junction and the Supreme Court of Ohio Erred in

Holding Otherwise

Injunctions against the prosecution of inequitable and

harassing actions under the Federal Employers’ Liability

Act in distant State courts have been often sustained by

the decisions of the highest courts of the State.

Reed’s Admrar. vo Illinois Central RoR. Co., 182) Ken

tucky 455, 206 S. W. 794.

9) 7

Ai page 464, Judge Carrol for that court said:

“We do not, however, give to this statute the pre-

emptory effect claimed for it by counsel for the ad.

munistratrix or agree with their contention that, as it

was allowable under the act to bring this suit in the

State of Minnesota, therefore the plaintiff could not be

restrained by injunctive process from prosecuting it to

a conclusion in that state... .

“The Federal act does not, as we think, take away

from the courts the power they possessed before its

enactnent to restrain the plaintiff in a transitory suit

from doing an inequitable and unconscionable thing

that would subject the defendant to great and unneces-

sary cost and inconvenience.”

Lowsrille & Nasheile Ro Co. v. Ragan, 172 Tenn. 593,

HS. W. 743.

Kermv. C20. Cl d St. L. Ry. Co., 204 Indiana 595, 185

N. E446.

Missouri ex rel NO YL CL & Sto 1. ROR. Co. vy. Nortoni,

331 Missouri 764, 55 S. W. (2d) 272.