*1 Chicago Plaintiff and Respondent, Lau, West- & North Railway Defendant: Pacif- Company, Missouri ern Defendant Appellant. Company, ic Railroad September 6—October *4 on the briefs The cause was submitted for appellant Clemons, Lester S. Quarles, Herriott and attorneys, & counsel, all of William K. McKibbage Clemons and Nathaniel Milwaukee, the brief of on and for respondent Paulsen, Prosser of Rothstein, Wake & D. attorney, counsel, all of Milwaukee. P., R. Co. St. M. & O. In Huck v. Chicago, Brown, J. 154, 132, the Rock 90 N. W. (2d) 4 Wis.

(1958), (2d)

333 Island Railroad facts identical to those presented practically Pac which Mo now before us the char- brings concerning acter extent of its activities in this state. After careful of the decisions we bearing subject consideration upon determined that the solicitation activities of Rock Island this state were of such and extensive nature substantial state to constitute the of business within the under doing 1957, and of sec. 262.09 Stats. provisions subject- (4), Rock Island to the of the court ing jurisdiction Wisconsin does offend the commerce clause of the United States the Four- constitution nor the due-process requirement Tester Co. teenth amendment. also v. Nelson See Dettman 6, 13, 804; Bond v. N. W. (2d) 7 Wis. 95 (1959), (2d) 371, N. W. Harrel 13 108 (2d) Wis. (1961), 552. did not con-

In that Rock Island’s activities soliciting case action, as in the cause of precisely tribute to plaintiff’s “it here that case at bar. Nevertheless contends appellant for the Wiscon- a violation of federal due process would be be- Missouri Pacific exercise over jurisdiction sin courts to out its not arise cause cause of action did alleged favor Whatever might in Wisconsin.” activity solicitation was settled the law ever have been accorded proposition, Mining Consolidated Perkins v. Benquet contrary L. Ed. Co. U. S. of the Four- clause that the The court then held due-process court from tak- the state not prohibit teenth amendment did in the state activities defendant’s jurisdiction although ing action. And cause of no related to way plaintiff’s were in 496 of 96 at that case appearing see the annotation L. Ed. activities Island’s that Rock

Expressly recognizing which accident pro with were unconnected Wisconsin in Huck decision reaffirm our we injury duced the P., Co., supra. R. M. O. St. & Chicago, *5 farAs as it Huck goes, bar, is, rules the case at Mo Pac’s solicitation activities it within the bring jurisdic- tion of a Wisconsin court. But Mo Pac points out that in Huck the court was not called upon consider nor it did pass contention upon any that Wisconsin’s jurisdiction might defeated of a because defendant’s incon- foreign in venience its presenting defense Wisconsin. that the Assuming nonresident has been served properly action, with in the process “due that in process requires only order to subject ato if judgment personam, he be not within forum, present of the he territory have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play ” Stone, and substantial justice.’ C. J., International Shoe Co. v. Washington 326 U. S. 90 L. Ed. 95. here does Appellant not assert

that service of was defective. Pac’s process Mo contacts with Wisconsin are the same as Rock Island’s were in Huck. The maintenance of this suit in Wisconsin does not offend traditional notions of fair justice. substantial play Valid service of existence process of minimal contacts plus initially due satisfy in maintain- requirements process the action a Wisconsin court. ing Wiscon- Jurisdiction sin then been has acquired. Subsequently question whether the previously jurisdiction should be re- acquired tained is be resolved in a consideration of jorum conveniens.

As “estimate of the inconveniences” which would result from trial corporation away from its home or prin of business is a cipal factor relevant place fairness and substantial justice of to stand requiring corporation trial in the state where the action was Interna brought. tional Shoe Co. v. at Washington, supra, Judge of the court United States of appeals, Learned Hand *6 circuit, in second Latimer v. F. Industrias Reunidas S/A 184, Matarazzo Cir. 186, 175 Fed. (2d 1949), held that International Shoe v.Co. Washington, Oil supra, Gulf v. Corp. 501, Gilbert 839, 330 U. (1947), S. 67 Ct. 91 Sup. 1055, Ed. L. and Koster v. Lumbermens Mut. Casualty Co. 518, 828, 330 S. (1947), U. 67 Ct. 91 L. Ed. Sup. determined that the non plea of conveniens was always forum to a in a open defendant case diverse citizen depending upon even where the ship jurisdiction personal was unquestioned. Hand concluded that these decisions Judge answer con any objection stitutional to with the aforesaid “esti dispensing mate of the inconveniences” factor because the nonresident could relieve itself corporation of any oppressive by prejudice Hence, recourse to the non conveniens. plea, for prac forum said, tical he purposes, it will be if the of enough factor inconvenience to the in trial state where suit is be tried a out with brought along plea, forum conveniens.

Mo Pac’s is motion the service and quash of summons dismiss the action on the that the inconvenience ground which that defendant in would encounter this defending action the courts of render a Wisconsin is such as to trial in that forum a denial of defendant’s under due- rights motion, clause of amendment. That process Fourteenth on the of trial resting alleged inconvenience to defendant forum, is in that substance non conveniens of plea forum asserted, supra, which is plea, Judge constitution- Hand determine whether trial this state ally adequate to would unconstitutionally, be defend- prejudicially oppressive The Mo Pac’s tanta- ant. circuit court treated motion as of non conveniens mount to and plea applied forum A¥e think the learned plea. principles appropriate trial court did so correctly. discussed these in the principles Mr. Justice Jackson Corp. Oil Gilbert

majority opinion Gulf 91 L. Ed. S. 508 and U. following, them 508: we from Among quote, considered, and one to be “An interest to be likely is the interest of the litigant. Impor- most private pressed, are the ease access to tant relative of sources considerations for attendance process of of proof; availability compulsory cost attendance unwilling, obtaining willing, if view be witnesses; of view would possibility premises, action; and all other problems appropriate that make trial practical a case easy, expeditious, inexpensive. of a There also as to the may questions enforcibility *7 relative if one obtained. The court will weigh is judgment to trial. is that and obstacles fair It often said advantages forum, not, an inconvenient may the choice of plaintiff ‘vex,’ n ‘harass,’or the defendant by inflicting upon ‘oppress’ him not his own necessary or trouble right expense his But unless the balance is in strongly pursue favor remedy. defendant, the the choice of forum should plaintiff’s rarely be disturbed.”

In his in v. Texas P. R. Kilpatrick & Co. opinion (2d 788, 790, 791, Cir. Fed. 1948), Judge Hand Gilbert, as Corp. supra, Oil interprets empowering Gulf “balance inter- or the trial court to the directing conflicting i.e., ests the to the involved: whether gain plaintiff retaining was, the where the burden action it outweighed imposed defendant; vice versa. That is cer- the or upon question issue con- from the tainly indistinguishable Jorum . or other is any veniens.’ . . when railroad corporation the its outside state of continuously business incorpo- doing it ration, which service subjects personal that ‘presence’ de- which venue is specifically provided, in actions for no ” non conveniens.’ the issue of pends upon Jorum considered the court disad- learned trial properly The a trial in a each party and inconveniences vantages court, interests balancing respective Wisconsin or Pac. We consider that expense and of Mo plaintiff inconvenience to the defendant in a trial accruing here does that on outweigh imposed trial else- plaintiff by where, nor is there any can probability justice be better served in another forum than Wisconsin where the accident took Mo Pac stresses place. incident to expense bringing to Wisconsin its train two crews who had handled the car it was in freight while Mo Pac’s and control possession hand, in Nebraska. On the other if must his plaintiff try case in Nebraska or Missouri will have similar plaintiff travel for his expense eyewitnesses to the acci- witnesses— Moreover, dent—and his numerous medical Mo witnesses. Pac’s witnesses are its own employees presumably had, amenable to its directions to attend wherever the trial is while has no such similar plaintiff his ability produce witnesses a trial from Wisconsin. away To repeat, choice forum should plaintiff’s rarely disturbed and in view, court, trial our that of learned this is not one of those rare occasions.

We conclude that order Judge Mo Drechsler’s denying Pac’s motion should be affirmed. affirmed.

By Court.—Order I Hallows, concur the result but (concurring). J. *8 with the that the not of due reasoning question may process an issue be decided as of conveniens. As I under- forum stand International Shoe Co. v. Washington (1945), 90 L. Ed. the U. S. of question to the basis of In very jurisdiction. due this process goes case, the was of court considering problem “presence” a within a state in order to determine in of corporation of In the activities of a personam jurisdiction. speaking sufficient, the state which would be within corporation must, fact, certain minimal contacts exist so court said the suit would not offend “tradi- the maintenance of In re- justice.” fair and substantial of play tional notions said, to the due of court requirements process, ferring 317, “Those be such contacts demands met may by page state as make it of the with the of the forum corporation reasonable, in our federal of system govern context ment, to defend particular require corporation An ‘estimate the inconven suit which is there. brought a result to the from iences’ which would trial corporation is from its of business place ‘home’ or away principal rele connection,” v. Chase in this Hutchinson & vant citing court 45 Fed. 139. The also Cir. 1930), Gilbert (2d stated, 319: mark the criteria which we

“It is evident that the the sub- justify line those activities which between boundary not, suit, and which do those jection corporation is The test cannot be mechanical or quantitative. simply the ac- sometimes been whether has merely, suggested, has seen through which the fit to procure tivity, its corporation state, a little a little less. another is more or agents 228; Alexander, Inter- W. Co. v. supra, St. Louis S. R. Harvester 587. Whether Kentucky, supra, national Co. v. rather is must depend upon qual- due satisfied process the fair nature of activity relation ity laws which it was the administration of the purpose orderly clause to insure.” of die due-process Gilbert, Hutchinson & which intro- supra, In v. Chase inconveniences,” of the the court the idea of “estimate duced was to the defendant how the inconvenience say did not or there should be balancing be determined whether Interna- to the and the plaintiff. inconvenience inconven- makes the supra, v. Washington, tional Shoe Co. the elements to considered the defendant one of ience to awith state relatively slight whether contacts in determining the courts jurisdiction by so that exercise are sufficient otherwise,' fulfil the due-process requirement; state of that

339 the test of what will amount to the minimal of contacts is a mechanical and purely measure rather than quantitative of minimal due-process contacts which is the concept jurisdiction. of equivalent Hand, LeaRned

Judge in his v. opinion Kilpatrick Texas 788, & P. R. Co. Cir. (2d 166 Fed. 1948), (2d) referred to the two-element of theory presence stating issues involving inconvenient factors were the same as those determined aon non plea conveniens. This forum an statement erroneous construction put on what United States court said in the International supreme Shoe Case the term “estimate of the using inconveniences.” In Latimer Industrias Reunidas F. Matarazzo S/A 1949), 184, 175 Cir. Fed. it (2d was stated that 501, Corp. Oil v. Gilbert 330 U. 67 (1947), S. Sup. Gulf Ct. 839, 1055, 91 L. Ed. and Koster v. Lumbermens Mut. Co. Casualty U. S.

L. Ed. answered any constitutional to dis objection with the inconvenience pensing element deter altogether aof defendant for mining presence corporate purpose jurisdiction of the court could because relieve himself of to the any by recourse oppressive prejudice plea non conveniens. curious The This is Oil logic. forum Gulf Koster and the Cases dealt with the of a Corp. only power federal court the doctrine of non conveniens. apply forum jurisdiction Neither involved and the question case Shoe Case Latimer International was cited. excises the element inconvenience jurisdiction concept from defendant, which International an in to the Shoe makes contacts, minimal examines it separable ingredient as tissue of non conveniens. under microscope forum jurisdiction issues or to determine To the two try together, conveniens, can if it involved the doctrine of forum *10 lead, for all to confusion and error. only practical purposes, As Mr. out in Corp. Oil pointed Justice Jackson Gulf Gilbert, non supra, doctrine of conveniens can forum and, there is an absence jurisdiction never if of on apply 506, stated: all in “In cases which the doctrine of non con- forum veniens it at forums comes into least two play, presupposes in which defendant is amenable to the doctrine process; furnishes criteria for choice between them.” in

I believe Latimer was all that for wrong stating prac- tical in a distinction purposes, although admitting theory, that the determination of the issue non conveniens of forum issue. the sake determines the for jurisdictional Conceding of the inconvenience can that to argument of the local activities determined out its to relationship action, the result claimed does and to particular of The to the defendant follow. inconvenience necessarily as not to in forum be of such magnitude sued may being violate traditional notions due and would satisfy process such but inconvenience justice, fair and substantial play issue non conveniens the broader considered under forum than the to plaintiff less inconvenience relatively bemay such taken into consideration applying factors and other doctrine. majority opinion and what the the trial court did

What into jurisdiction quanti- concept is divide the approves inconvenience, after deter- activities tative local minimal by analogy at least activities were the local mining P., M. R. Co. & O. St. Chicago, to Huck v. 154, tried the inconvenience 132, N. 90 W. Wis. (2d) under the doctrine it raised as if were issue forum conveniens. the facts court on affirm lower

However, would we this of defending the defendant the inconvenience because in the forum sustained injuries suit, for personal which is caused allegedly by negligence or mainte- operation door, nance its boxcar bears a reasonable relationship the defendant’s railroad activities localized in state and this those contacts do not offend traditional notions light of fair and substantial the defendant play justice require to defend the suit this state. Thus has juris- Wisconsin diction of the defendant in this action.

I am authorized to state that Mr. con- Fairchild Justice *11 curs in this opinion. another, another,

Brodde Appellants, Grosenick Respondents.

September 7 —October