Leet

In these two actions plaintiff, as administratrix of the estates of Thatcher and Utterback, recovered judgments in the trial court for damages under the Federal *607 Employers’ Liability Act as the result of the wrongful deaths of decedents. ( 45 U.S.C.A. § 51 et seq.)

Decedents were killed in Portland, Oregon, while in the employ of defendant railroad company. They and their heirs were residents of Oregon. The heirs nominated plaintiff to be administratrix and she was appointed by the superior court sitting in probate in Los Angeles County. Defendant is a Utah corporation and admits that it was and is doing business in California. After the commencement of the actions in. the Superior Court in Los Angeles County, California, by plaintiff, defendant obtained decrees in an Oregon trial court restraining decedents’ heirs from prosecuting the actions in California. Defendant made motions in the California court to abate the actions and also pleaded the Oregon injunction decrees in its answer. Defendant also made motions to continue the trial of the actions “indefinitely.” Those motions were based upon the same grounds urged in the Oregon court in the injunction proceedings and the…

I cannot agree with the assumption made by Mr. Justice Carter that the motions of the railroad company to continue the trial of the. two actions were denied upon the merits. The carrier contends that the adverse rulings were made solely because of the trial judge’s conclusion that the Federal Employers’ Liability Act ( 45 U.S.C.A., § 51 et seq.) required the court to accept jurisdiction and proceed with the trials, regardless of any prejudice suffered by the employer as the result of its inability to produce witnesses without impairing the war effort. The plaintiffs do not claim that the rulings were made upon the merits, nor do they challenge the railroad company’s statements to the contrary.

The motions were made upon the grounds, generally stated, that it was prejudiced by the absence of witnessses who could not then be produced without serious interference with the war effort, and that the trial of the cases on the date then set would place an undue burden upon interstate business. Facts tending to support the company’s position were presented by means of three affidavits which included various data concerning the carrier’s wartime activities. The plaintiffs filed no…