Atlantic Coast Line R. Co. v. Davis. In Re Atlantic Coast Line R. Co
185 F.2d 766
5th Cir.
1950
Check Treatment

*2 RUS- McCORD, Before BORAH SELL, Judges. Circuit RUSSELL, Judge. Circuit ap- an have for consideration both peal application and an issuance for writ both of of the of mandamus substance, an seek, in to have set aside Court for the South- directing ern Florida the trans- District of Davis, Adminis- fer of Flora Davis, de- tratrix of the Estate of Calvin ceased, Line against the Atlantic Coast Company to the United States Railroad for the District Court Southern York. New pro underlying The facts both of Davis, ceedings Flora as follows: are as aforesaid, Administratrix instituted for United States District a suit New Southern District Employers’ upon Lia based the Federal Act, seq., 51 et 45 U.S.C.A. bility § against company seeking re the railroad while covery for husband the death her employ. The Southern Dis its was was venue York trict of New administratrix, for the suit. The decedent, is a resident her that the of Florida. It was there result injuries were suffered fatal railway alleged negligence decedent, like employer of and was there, nearby, all wit wise Upon proper motion nesses resided. York by the defendant to New made proceeding pend which the Court in Bondy, ruling ing, relying Judge in Pascarella v. York Central Co.,1 unqualified right try this might have (because arising in his Court action Liability but Employers’ Act), the Federal pow if the Court even concluded action, the in its er transfer the deny “the motion in the discretion Howell, Jr., M. Cook Wm. Charles justice, assuring speedy final interest Fla., Howell, Jacksonville, 'Charles Cook Following the case.” determination Howell, Wilmington, appellant. C., N. Collett, in Ex U.S. the decision Fla., L.Ed. Jacksonville, Evans, T. Her- Evan renewed 111., Ogden, Chicago, appellee. defendant-movant bert S. D.C., F.Supp. 95. above, reargu motion for a declaring it be “in dis- de granting ment cretion of for an order this Court and in the interest pursuant provisions the action to fendant’s motion to transfer *3 [1404(a)]” granted the Southern There said Section Florida. the parte of Ex Col motion and ordered cause after consideration the to be trans- lett, ferred supra, the that the trial the District “and of fact Court the South- in ern impose in this district District New York. The would serious defendant appeal and wit has entered an in convenience on the defendant from this order nesses, pursuance superseding of which and that condition of the cal an order the likely endar the transfer has the granted iby of this Court makes it that been trial appli- trial Court. The this action would be for soon defendant also an reached filed er in for and the United States District Court cation secured leave to file in this t Florida,” an the Southern Distric for the writ of man- require and granted Judge the motion to transfer damus the and the presided the’former and order set.aside order thereof who in cause va- directed that the cause be transferred cate set aside order of transfer. cause, Florida. to the Southern District of This In answer order to show September 23, was 1949. The the Judge done Honorable District to his refers 3 case accordingly responds.2 transferred and trial order retransfer and further 10, begun in the Court on March Florida At the outset our considera failed to a vérdict The reach retransfer, propriety tion of the we declaring mis was entered a question juris are faced with of our tried, again beginning trial. The case was writ, diction either to issue to con 1950, again 22, failed to June appeal. ap clearly sider think a declaring reach verdict and an order a parent facts stated this is an that Immediately upon entered. mistrial was cause, extraordinary that it is >a entry of the declaration of the second mis any nature which renders the likelihood of 'triál, plaintiff orally'moved counsel for the fair and effective correction of the action Court for retransfer of the 'cause by subsequent appeal, of the Court if this op back to York.2 This motion New necessary, legally should be determined posed defendant. The Court took impossible.4 highly improbable, not if advisement and matter thereaft present There is con er, reciting in what substance is stated 1404(a) struction of section of Revised motion, nesses, trials, 2. “I wish make a Tour Honor. taken at available moves) parties. now ünder Section that to the The fact two mis- 1404-A, extremely to re-transfer this action for trials were had makes it doubt- trial, back New where if a third trial in ful the Southern. Dis- originally apparent It started. that in of Florida result trict in a vic- justice, tory the interest of that should ‘in side and either the interest justice’ (Title 28, U.S.C.A., done. witnesses is convenience Section longer 1404(a) ), no consideration. There have this ease should have been in this been two trials timony the tes- transferred to another expeditious disposition. of all of the witnesses can be The old any necessity transport- delayed maxim, road without ‘Justice denied’ ' themselves, entering and I the witnesses re- controlled this court in or- spectfully request transferring point Your Honor to re- der origin the ease to the handling by court, this case to the district in which for further originally where, by started, law, U.S.C.A., it was as Title 28 authorized Sec- 1404(a). it was authorized to be commenced.” tion fully “Having answered the order transferring 3. “The reason for the Davis respondent cause, prays show to be in- case from the Southern District appropriate procedure structed as to York to Florida pray.” in such over will longer present in is no the case as it has Knight, Cir., 4. Foster-Milburn Co. v. been twice tried in the Southern District 2 181 complete Magnetic 949; Engineering of Florida testimony records of all F.2d Co. v. parties Dings Co., Mfg. of all known 2 and wit- 178 F.2d 866. 1014,8 796, Ass’n sec- 87 L.Ed. Alkali U.S.C.A.,5 U. S. and whether Title S., 196, 201, 1120, plural U. contemplates one trans- 325 U.S. 65 S.Ct. to L.Ed. 1554 cases This attention has been directed cited. fers. Our any recognized Collett, tacitly question by adjudication of this Ex 55, 69 944, 959, 93 here view, the L.Ed. 1207and any proceeding In U.S. Court. Kilpatrick this the following of whether cases it of v. Tex determination involves authorizes, Co., contemplates, or & Pacific 337 U.S. 69 S.Ct. section event, (to ordered here 1223 and United retransfer as 93 L.Ed. States Court, City Lines, been might v. National U.S. not “it have *4 959, 955, originally Though it brought” S.Ct. 93 L.Ed. 1226. the hut to which brought), when in the Court in each of cases denied the been of jurisdiction writ, the cause motion the merits of transferred the the once accepted question, question fully without and and had been considered dis were had, cussed, such and when transfer two trials and under the decisions there was upon predicated only grounds the relied occasion to order the issuance of the the upon. have concluded that under writ. The Court of for the Sec jurisdic- jurisdiction of case Court has facts this this ond has declared its Circuit necessary. writ, if tion to issue the writ issue the in case of refusal Ryan, Ford v. in transfer Motor Co. opinion grounds of We are the 182 F.2d denied 71 certiorari S.Ct. 79 or which rested decision Knight, also in Foster-Milburn Co. v. wholly are dering so insuffi the retransfer supra, where it was found section bring support the and to cient 1404(a) would not authorize the transfer 1404(a), the terms section su within of of the cause. case, pra, retransferring that the order the re substance, in unwarranted evidences then the We turn merits. Consider- not jurisdiction, if also an nunciation supra, in 1404(a), light the section beyond jurisdiction, Court’s act the suffi purpose and its its relation the doctrine jurisdiction cient sustain our to issue conveniens,9 but authorizing non forum pro in aid and maintenance and transfer rather dismissal of than the appellate jurisdic of this tection Court’s suit,10 reasonably argued could be present fall tion. We consider case to authorizes, envisions statute after provisions of Title 28 U.S.C.A. has made the 1651(a),6 principle rulings in within the § venue, only choice of one determination others, cases, among in such McClellan thereafter venue which Carland, page 217 U.S. and citations parties will best serve “the convenience 501, 504, 54 L.Ed. Ex 762.7 witnesses, justice” in the interest of Peru, 578, 583, parte 318 U.S. 63 S.Ct. and that this determination settles mat- parties 5. “For the convenience wit- action feated unauthorized of the nesses, justice, the interest a dis- court below.” may any trict court to civil action prohibition 8. “The historic nse of writs of any other or division district where it appellate mandamus directed brought” might have been inferior to an court has exert been “(a) Supreme 6. revisory Court and all appellate courts over the in- Congress may established Act of issue ferior court. The writs thus afford an necessary appropriate all writs expeditious in aid effective means con- jurisdictions respective their fining inferior court to lawful ex- agreeable usages principles to the prescribed jurisdiction, its ercise of law.” compelling authority it to its exercise duty its when it is to do so.” 7. think it “We the true rule that where a appellate jurisdiction within Collett, supra. 9. Ex higher court, of the a writ of mandamus Amalgamated Ass’n, 10. Etc. v. Southern appellate juris- issue in aid Lines, Cir., 946; Jiffy Bus 172 F.2d might diction which otherwise be de- Co. v. Lubricator Stewart-Warner Cor poration, Cir., F.2d would, by 'the intangibles, These understood well er. statute This comprehended profession, broadly any shuttling of the are possibility remove the wit- “the manner and demeanor several between the cause or of conflict sense, every In real nesses on the stand.” -jurisdic- courts, district each coordinate par- plural of the convenience tion, trans- would arise jus- divergence ties and witnesses in interest fers. room for wide There is unchanged by tice existence conveni- of conclusion as what serves transcripts not now of the evidence. justice. need ence But we implicit in precise limitation determine the of this Under the circumstances firmly statute, are since we renunciation retransfer evidenced the pre- here that the circumstances jurisdiction the or abandonment of wholly insufficient are in event sented required in- legally to exercise 'Court was by the the retransfer directed to authorize lawfully pend- order to terminate the cause assigned legal- do not Court. The reasons ing before it. necessity ly support the order. appeal, We do not consider mistrials evidences re- of two direction *5 secured order it dismissed. The result consumption liti- judicial of grettable disposition by our but, very in the expense, gational time and is, however, substantially the same system, jury it fails to es- of nature our upon appeal, extending as if reached done, injustice has been either that tablish setting of to effect the vacation and aside prevent of the cause to recurrence which directing pa the order the transfer. The transferred, another trial or that should be pers actually have transferred. not been of in the rendition not result a spirit Judge, The in that esteemed hold otherwise would proper To verdict. always seeking right, after the which proof, de- imply, irremedial without that him, prayed “to be is characteristic of has jury list. We in the entire existed fects by as to instructed this Honorable Court implication was here not that such know proper procedure premises.” in the by the slightest degree entertained in the expression The of our conclusions makes us Judge, nor would he desire to that think the should va clear we Court think instead a there was credit it. We disregard cate the order of retransfer misconception of his under section proceed cause to trial in the and let the supra, and of the 1404(a), Florida. weight given be the fact mistrials. posture perceive In this we fact that the clear that the It is likewise for the issuance the writ at occasion testified, their already witnesses this time. recorded, support a de- does not evidence Rehearing On Petition that the matter the con- termination (No. 13346) (not of the witnesses mention venience respondent petition herein filed The has longer in- is therefore no parties) reconsideration seeking rehearing for, damages sued volved. The amount cause; certify moving the Court to appears $150,000, substantial, is and it that Supreme Court, questions to stated sufficient, if supporting are facts moving further that issuance established, defendant be liability stayed pending final'determina- mandate recovery of a sum. to authorize substantial by Supreme questions of such Court experience contrary would be .It petition to that “for a Court par- that to assume trial observation prohibition, certi- mandamus writ and/or safely forego their presenting ties could Court. orari” this orally deliver witnesses to respondent’s allegations From testimony, consequent opportu- with their Court misconceived the re clear this nity Judge and' for observance praying spondent’s instruc experi- intention which law and attributes those proper proce this ages Court as afford tions declares ence orig- to in the premises, in the referred determining credibility. guide dure proper consideration opinion, and in inal issuance direct the Court did not this proceed- of mandamus. Since further

writ necessary contemplated, it ings are be ren- should judgment final and definitive predicate for as a them.

dered amend- rendered heretofore hereby given, adding direction it the ed is- of mandamus should to-wit, writ peti- by the prayed this sue Com- tioner, Line Railroad Atlantic Coast disregard, respondent to

pany, directing the directing

vacate and set aside the against Flora Davis cause of

transfer of the Company Line Railroad Atlantic Coast District of the Southern trial docket the cause to the

restore South- for the District Court

United States Divi- Florida,

ern District Jacksonville en- transfer had been sion, if no order

tered. and certifica- petition rehearing Supreme questions to the *6 stay of will direct denied. the issuance enforcement opportunity afford

of the mandate be under- proceedings desired to

appellate respondent.

taken INS. CO. v. BOYKIN FIRE

COLUMBIA TAYLOE, Inc. &

No. 6134. Court of

United States Circuit. Fourth

Argued Nov. 16, 1950. Dec.

Decided Taylor, Jr., Ashburn,

Tazewell and W. R. Norfolk, Agelasto Sellers, (Ashburn, Va. & Norfolk, Va., brief), appellant.