Before L. HAND, Chief Judge, and SWAN and CLARK, Circuit Judges.
Plaintiff, an employee of the defendant railroad company residing in Ohio, has secured a verdict and judgment against the company for $28,750 for an accident occurring in Ohio. The defense urged on this appeal is that of improper venue, based upon plaintiff's agreement, made after the accident, to institute no action for the injuries in question except in a court sitting within either the state where the injuries were sustained or the state where the plaintiff was then living. This defense was stricken before trial on motion of the plaintiff, 8 F.R.D. 65.The appeal therefore presents an issue which has quite divided the courts, the latest decisions being Akerly v. New York Cent. R. Co., 6 Cir., 168 F.2d 812, rejecting the contract, and Grand Trunk Western R. Co. v. Boyd, 321 Mich. 693, 33 N.W.2d 120, petition for certiorari pending, supporting it.*fn1
The accident on which the action was based took place on March 10, 1946, in the Akron, Ohio, yards of the railroad.It resulted in personal injuries to plaintiff, who was then engaged in his duties as a yard conductor, though concededly in interstate commerce. Two months after the accident, plaintiff signed the agreement in issue,*fn2 in return for an advance of $250 for living or other expenses. Thereafter the defendant made further advances, subject to like conditions, to a total of $1,750. The venue provisions of the Federal Employers' Liability Act, § 6, 45 U.S.C.A. § 56, provide that the employee may sue either "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." Hence the contract here, while assuming to give the plaintiff an additional place of suit, namely, his residence, Ohio - though this was also the state of accident - actually denied him the right to sue in all other jurisdictions where defendant was doing business. If it is valid, it thus effectually prevents action in the court below.
We are met at the outset with the claim that the agreement in question is a valid compromise of plaintiff's claim for damages, and is therefore a complete bar to his action. Callen v. Pennsylvania R. Co., 332 U.S. 625, 68 S. Ct. 296. But in Duncan v. Thompson, 315 U.S. 1, 7, 62 S. Ct. 422, 424, 86 L. Ed. 575, that contention was rejected as to an advance made after the accident in consideration of an agreement not to sue until the advance was repaid. There the Court said: "While the agreement does contemplate the possibility of future settlement, it expressly stated that the $600 was advanced 'for living and other expenses pending further developments as to the extent and effect of * * * injuries and negotiations for settlement of [the] claim.'" And in the agreement at issue here, appellee promises to try to settle his claim before resorting to litigation, thereby requiring the conclusion that the $250 he received, specifically referred to as an "advancement," was not contemplated by the parties to be in settlement of his claim. The provision that he could keep the advance if he did not sue does satisfy the requirement of consideration for the contract, thus meeting the alternate ground upon which Akerly v. New York Cent. R. Co., supra, was put, against Judge Miller's dissent. We must therefore determine its validity as an independent contract to waive a procedural advantage afforded by the Federal Employers' Liability Act.
Defendant claims that we can resolve the issue on the plain language of the Act itself, which provides in § 5, 45 U.S.C.A. § 55: "Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void." Duncan v. Thompson, supra, has established that contracts made after the injury are within the scope of § 5; and it specifically voided the condition precedent to suit of returning the money advanced. We agree with the majority view in Akerly v. New York Cent. R. Co., supra, that the sweeping language of the Act, its legislative history, and the interpretation of the provision thus made - all support the plaintiff's contention.
Significance should be attached to the inclusive nature of the statutory phrase - "any liability created by this chapter." Had a restricted meaning been intended, it would surely have been simple, indeed, to limit the statutory provision to the duty to pay damages. That could have been done by this precise, though natural, phrase, or indeed by descriptions used in other parts of the Act, such as the "right of action" of § 59 or even the "cause of action" of § 56. On the other hand, it is difficult to think what liability under this chapter, and beyond the main grant of § 1, could have been intended if this was not, or what more apt expression to cover it, together with all other duties, liabilities, and disabilities created by the Act, could have been chosen. The importance of this extensive choice of venue to injured railroad workers is no secret; it was fully set forth by Senator Borah in sponsoring the amendment of 1910 which granted the choice - a bit of legislative history recently recounted at length in decisions re-enforcing the option against suggested judicial limitation. Baltimore & O. R. Co. v. Kepner, 314 U.S. 44, 62 S. Ct. 6, 86 L. Ed. 28, 136 A.L.R. 1222; Miles v. Illinois Cent. R. Co., 315 U.S. 698, 62 S. Ct. 827, 86 L. Ed. 1129, 146 A.L.R. 1104. Of course if we cut through dialectic to reality - a la Mr. Justice Jackson in the latter case, 315 U.S. 698, at pages 705-708, 62 S. Ct. 827, 86 L. Ed. 1129, 146 A.L.R. 1104 - we know that its greatest importance is because of its hoped-for consequence upon the amount of recovery through suit in a district where juries are generous. But we need not resort to an operation so drastic. For the views of cases and scholars - not to speak of the preferred dictionary definition relied on by Judge Allen in the Akerly case, supra - are quite ample to sustain this meaning of "liability," even apart from the special setting of the statutory phrase in its immediate context. Under the analysis of Professor Hohfeld, adopted by the American Law Institute, liability is quite differentiated from a mere duty to pay damages and serves as the correlative of power and the opposite of immunity or exemption. Thus the railroad was contracting against its liability to be sued, i.e., to have its legal relations changed - adversely - in any one of several jurisdictions, in order to obtain immunity from such change except under the favoring conditions of a single chosen jurisdiction. Hohfeld, Fundamental Legal Conceptions 8, 50, 58-60, 1923, citing and quoting judicial usage; Corbin, Legal Analysis and Terminology, 29 Yale L.J. 163, 169, 170; 1 Restatement, Property § 3, comment a and Special Note, 1936.
Of course we should not press this overfar; in fact we need hardly have gone beyond the statutory background itself had not the judges sustaining these particular contracts relied, without other than an ipse dixit, upon some inherent circumscribed meaning necessarily to be attributed to the phrase.*fn3 Once this is effectively challenged - indeed, once the compulsion thought to inhere in the word itself is dissipated - there is nothing left to restrict the broad sweep of the statute. And, indeed, any possibility that the statutory phrase could be limited to the duty to pay damages only would seem already foreclosed by Duncan v. Thompson, supra. That case, it will be recalled, held invalid an agreement requiring the repayment of sums advanced as a condition precedent to the bringing of action. If the statutory phrase applies to a condition requiring fulfillment before an action may be brought, it would seem just as applicable to a condition as to the place where action must be brought.
I conclude that under the statute the contract relied on as a defense is invalid. I add a brief word as to the concurring opinion of my Brother HAND lest our apparent differences in approach unduly overshadow our considerable accord. Except that I do not understand the basis for the assumed-to-be-accepted single meaning of liability (even against the apotheosis of a different meaning by our learned masters of the Law Institute), or the distinction asserted for Duncan v. Thompson, supra, I do not strongly contest his analysis, at least so far as it draws additional sustenance from common-law sources. Thus I accept the view that these are contracts of a kind generally to be viewed critically unless they are to be taken as parts of a fair compromise between the parties. 6 Williston on Contracts § 1725, Rev.Ed.1938; 2 Restatement, Contracts § 558, 1932. But as these authorities show, invalidity is much more general and more easily demonstrated as to contracts made before a cause of action has occurred and specific rights have accrued than as to one concerning a particular right of action. Here in actuality we are thrown back to this particular legislation to discover why - quite properly, as we both agree - this contract should nevertheless fall within the interdiction of the law. As my brother's opinion shows, the fact of the prohibition embodied in § 5 looms large in his result, notwithstanding its earlier repudiation by him. It does seem that I am placing somewhat more weight upon that prohibition than he, though how much I am not sure; at least, without it I should find our conclusion rather doubtful, while perhaps he would not. But to measure this difference in emphasis between us would be difficult and, I suggest, not too important, since the statutory prohibition is actually there to aid both of us to arrive by our several courses at the same end.
L. HAND, Chief Judge (concurring).
There has been a spate of decisions as to whether, after he has been injured, an employee may make a valid contract which limits the choice of forums allowed him by § 6. Some of these have held such contracts valid; some have held them invalid under § 5; in one it was suggested that they were invalid because of the hostility which courts have always felt towards contracts which forbad resort to any courts to which the law gave access. My Brother CLARK has said all that can be said regarding these; and, obviously, the situation is one where only the Supreme Court can speak with finality. I agree with him in result, but for other reasons.
The term, "liability," in colloquial speech has indeed no certain boundaries; but in law, unless the context otherwise demands, it means a duty to another enforceable by sanctions; and to "exempt" one from "liability" means to relieve him of the duty, in whole or in part, which in the case at bar would mean the payment of damages. That is the scope of § 5; to extend it to a surrender of any one of the procedural incidents by which the sanctions are imposed, has no warrant in the language chosen by Congress, or in its apparent purpose. As I shall try to show, such contracts ought not indeed to be enforced, unless the employee is adequately protected; but when he is, section 5 does not invalidate them. Duncan v. Thompson*fn1 gives no support to a contrary view. Disregarding the second point decided - that the contract lacked consideration - the contract did "exempt," and wholly "exempt," the road from "liability"; for, as matters stood, it had relieved the road from any compulsion to pay damages. It is true that the employee had it within his power to revive the "liability" by repaying the advance, but that is irrelevant; section 5 does not permit such a release whether absolute or conditional. To surrender access to some of the forums to which section 6 gives the employee resort, does not in the least relieve the road of its duty or of any sanctions for its performance, unless the forum which remains open is not competent to assess the damages and enforce the judgment; and the forum left open in the case at bar was altogether competent for both purposes.
On the other hand, be the original reasons good or bad, courts have for long looked with strong disfavor upon contracts by which a party surrenders resort to any forum which was lawfully open to him. Since such contracts are almost always made before any claim has arisen, there are few decisions which have considered whether that feature is important: that is, whether the doctrine covers contracts made after a claim arises. There are three decisions which make the distinction,*fn2 but in a fourth case one of the judges thought it irrelevant.*fn3 On such a showing I feel free to decide the point as res integra. In point of principle, I can see no basis for such a distinction. There is of course force in what my brother Swan says: that a man, who has a choice of where to sue upon an existing claim, ought to be allowed to make an irrevocable choice before he actually sues; but is there any greater reason why he should not be able to make the same choice before the claim has arisen? Whatever the grounds for denying him the privilege in the second case, seem to me to deny it in the first. In truth, I do not believe that, today at least, there is an absolute taboo against such contracts at all; in the words ...