Winders v. Illinois Central Railroad Co.

1 Reported in 223 N.W. 291 , 226 N.W. 213 . Defendant appeals from an order refusing to set aside the service of the summons and from an order denying its motion to dismiss the action. Defendant is an Illinois corporation owning and operating lines of railroad extending into other states, including Kentucky and Minnesota, carrying interstate traffic. The summons was served by delivering a copy thereof to a ticket and freight agent of the defendant in charge of one of its railroad stations located in the county where the action was begun, as authorized by G. S. 1923 ( 2 Mason, 1927 ) § 9233. The action is to recover for personal injuries sustained by plaintiff in defendant's employ and while engaged in *Page 3 moving a train carrying interstate commerce within the state of Kentucky. The claim is that defendant's negligence caused the injuries, and redress is invoked under the federal employers liability act. Plaintiff resided in Kentucky when injured but claims to have become a resident of this state before the action was begun. The order refusing to set aside the service of the summons on the ground that the trial of the action in this state places an undue burden upon interstate commerce must be sustained on the authority of Erving v. C. N.W. Ry. Co. 171 Minn. 87 , 214 N.W. 12 , followed in Kobbe v. C. N.W. Ry. Co. 173 Minn. 79 , 216 N.W. 543 . See also State ex rel. Schendel v. District Court, 156 Minn. 380 , 194 N.W. 780 ; Doll v. C. G. W. R. Co. 159 Minn. 323 , 198 N.W. 1006 . As we read Hoffman v. Missouri ex rel. Foraker, 274 U.S. 21 , 47 S.Ct. 485 , 71 L. ed. 905 , the position taken by this court is sustained. In Schendel v. McGee (C. C. A.) 300 F. 273, 278 , the court said: "We assume Congress could provide that actions in the federal courts should be brought at places where the same would not constitute a burden on commerce, but Congress has not done so. It has given the right under the federal Employers' Liability Act, hereinbefore discussed, to an injured party, or in case of his death to the duly constituted representative, to maintain an action for damages in the courts of the district where the defendant is doing business at the time the suit is commenced. We are not concerned with the justice or the wisdom of such legislation. It being the law, it is a court's duty, where there is jurisdiction, to take and retain that jurisdiction and try the case." The court in the same opinion pointed out the distinction between the statute authorizing service on a soliciting agent, involved in Davis v. Farmers Co-op. Equity Co. 262 U.S. 312 , 43 S.Ct. 556 , 67 L. ed. 996 , and service under G. S. 1923 ( 2 Mason, 1927 ) § 9233, upon a ticket and freight agent on a line of defendant's railroad operated in this state, in an action under the federal employers liability act. It may be conceded that this act, authorizing an action arising thereunder to be brought in the district "in which the defendant *Page 4 shall be doing business at the time of commencing such action" [Comp. St. § 8662] is liable to place a heavy burden upon transcontinental railroads. If it does, the remedy is with congress, which no doubt can limit jurisdiction to the courts of the state or district where the injuries were inflicted. We however can see no ground for holding that part of the act above quoted unconstitutional. Furthermore, its constitutionality was challenged in State ex rel. Foraker v. Hoffman, 309 Mo. 625 , 274 S.W. 362 , on the same ground as now urged — that it placed undue burdens on interstate commerce. By affirming the decision of the supreme court of Missouri in that case, we think the Supreme Court of the United States has set at rest the question now attempted to be raised by appellant. Defendant was certainly doing business both as an interstate and intrastate carrier in this state when this action was commenced, and service was properly obtained. The motion for a dismissal of the action, or declining to take jurisdiction, was based chiefly on the grounds that plaintiff's attorneys are engaged in the unethical practice of soliciting cases of this sort in other states and instituting actions thereon here, knowing that the railroads will rather submit to unjust exactions than incur the inconvenience and expense of a trial at a point hundreds or thousands of miles away from where the witnesses reside. It is also charged that plaintiff is a party or accomplice of the attorneys in the unlawful solicitation of like cases in behalf of the same attorneys. Plaintiff was without funds and his attorneys loaned him $500. The trial court concluded it was a part of the working plan of the attorneys, in securing retainers, to finance injured railway employes. It also appears that the attorneys employ laymen to travel in the several states investigating cases in which the attorneys are interested, and we think the court was justified in concluding that these employes of the attorneys had procured the contract of retainer from plaintiff. Even assuming that this contract was champertous, it did not affect plaintiff's cause of action under our decisions. In Isherwood v. H. L. Jenkins Lbr. Co. 87 Minn. 388 , 390 , 92 N.W. 230 , the court said: *Page 5 "We are not disposed to minimize the evils of champertous agreements, and will refuse, on grounds of public policy, to enforce them. Huber v. Johnson, 68 Minn. 74 , 70 N.W. 806 [64 A.S.R. 456]; Gammons v. Gulbranson, 78 Minn. 21 , 80 N.W. 779 . But upon principle and the decided weight of authority we hold that a defendant cannot avail himself of a champertous contract by the plaintiff, either as a defense, or by bringing it to the attention of the court and securing a dismissal of the action." The only jurisdiction which seems to hold the contrary is Wisconsin. Emerson v. McDonnell, 129 Wis. 67 , where prior decisions in that state are cited. In the annotation to Prosky v. Clark, 35 L.R.A.(N.S.) 512, a long list of cases from other jurisdictions is to be found, all in harmony with Isherwood v. H. L. Jenkins Lbr. Co. 87 Minn. 388 , 92 N.W. 230 . The trial court rightly refused to dismiss the action even though convinced that plaintiff had retained his attorneys under a champertous agreement, or that they are, by illegal methods, obtaining cases for prosecution in this state which in fairness ought to be tried elsewhere. Defendant claims that plaintiff assisted them in the unlawful solicitation of another case. The court did not so find, and we think the record would not sustain such a finding. That he visited a friend in the hospital who had received a serious injury and advised him to employ the same lawyers plaintiff had retained does not show an illegal act or motive. After this friend stated that he had concluded first to see whether he could effect settlement with the railway company without the aid of an attorney, there is no evidence that plaintiff again advised him to employ any counsel. The orders are affirmed.