MOONEY v. DENVER & R. G. W. R. CO.
No. 7373
Supreme Court of Utah
August 7, 1950
Rehearing denied November 10, 1950
221 P.2d 628
307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326
Affirmed. Costs to respondents.
PRATT, C. J., and LATIMER and McDONOUGH, JJ., concur.
WOLFE, J., concurs in the result.
Rawlings, Wallace & Black, Dwight L. King, all of Salt Lake City, for appellant.
VanCott, Bagley, Cornwall & McCarthy, Clifford L. Ashton, all of Salt Lake City, for respondent.
LATIMER, Justice.
Thomas B. Mooney, a resident of Denver, Colorado, commenced an action in the District Court of the Third Judicial District in and for Salt Lake County, State of Utah, to recover for certain personal injuries occasioned to him by the alleged negligent acts and conduct of the defendant, Denver and Rio Grande Western Railroad Company. The accident happened at Tabernash, Colorado, which is located approximately 66 miles west from the city of Denver, Colorado, and approximately 500 miles from the city of Salt Lake, Utah. The defendant, Denver and Rio Grande Western Railroad Company, is a corporation organized and existing under and by virtue of the laws of the State of Delaware and is authorized to transact business in the State of Utah with its principal place of business at Salt Lake City. It is engaged in interstate commerce and maintains
After the service of summons on defendant‘s process agent, the defendant company appeared specially and moved to dismiss plaintiff‘s complaint upon the grounds of forum non conveniens. This motion was supported by an affidavit filed by counsel for defendant corporation. In substance, the affidavit averred that the plaintiff was a resident of the state of Colorado and the defendant a corporation of the state of Delaware; that the witnesses for the defendant, estimated to be ten in number and necessary to the defense of the action, resided in the state of Colorado; that because processes from the courts of this state were ineffective the defendant was unable to compel the attendance of the necessary witnesses at a hearing in Salt Lake City, Utah, without meeting the financial terms and conditions demanded by the witnesses; that of the ten witnesses, three would be physicians and surgeons and that they would not attend without additional compensation and extra expense allowances; that all of the ten witnesses lived within a convenient distance of the courts located in the city of Denver, Colorado; that there are both state and federal courts which have jurisdiction to try the action available in Colorado; that defendant is at a disadvantage in presenting its defense in this state in that it is impossible to have the jury view the premises where the accident took place or to view the defective equipment which allegedly caused the injury to plaintiff; that the trial of the action in the Third Judicial District Court would add to the congestion of the calendar in that district and would delay the
The motion came on for hearing before Honorable John A. Hendricks, Judge of the Second Judicial District, who was called to sit as judge in the Third Judicial District Court. In his findings of fact he found the facts as alleged in the affidavit and the additional facts hereinafter recited. The latter are apparently based upon the trial judge taking judicial notice of the condition of the court calendar in the Third Judicial District. The facts dealing with the state of the court calendar are these: The trial calendar for the month of June, 1949, showed that a total of 165 civil cases were at issue and set for trial; that approximately half of that number could be disposed of during the month of June; that the crowded condition of the calendar necessitated calling in an extra judge to this district; that 29 similar cases involving personal injury suits against three different railroad companies were assigned for trial during the month of June, 1949; and that of that number, 17 were brought by non-residents suing on causes of action arising outside of the state of Utah.
The trial judge sustained the motion to dismiss the action upon the grounds of forum non conveniens, and plaintiff perfected his appeal to this court. We are thus presented with the question as to whether or not a District Court of this state can, because of convenience of court and parties, dismiss an action brought by a non-resident plaintiff
In view of the fact that this action was brought under the Federal Employers’ Liability Act, the venue provisions of Section 6 of that act become important. That section provides as follows:
“Under this chapter an action may be brought in a district court of the United States, 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. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several states.”
As amended June 25, 1948,
The foregoing section sets forth the requirements for venue as prescribed by the Congress of the United States. Similar requirements controlling venue within this state when the cause of action arises without the state are found in
“All transitory causes of action arising without this state, except those mentioned in the next succeeding section, shall, if action is brought thereon in this state, be brought and tried in the county where any defendant in such action resides; and if any such defendant is a corporation, any county in which such corporation has an office or place of business shall be deemed the county in which such corporation resides, within the meaning of this section.”
In view of the provisions of these two sections, there can be no question raised that the Third District Court in and for Salt Lake County does not have jurisdiction of the cause of action, as the principal place of business of the defendant in this state is located in Salt Lake City, Salt Lake County, State of Utah. Therefore, if the actions of the trial judge in dismissing the action can be sustained the power must be found in the inherent right of a court to dismiss a cause of action over which it has jurisdiction for the reasons that there is a more convenient form.
Before discussing the various cases dealing with the
“All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.”
“The court may, on motion, change the place of trial in the following cases:
* * *
“(3) When the convenience of witnesses and the ends of justice would be promoted by the change.”
We first dispose of appellant‘s contention that the Congress of the United States has decreed that the courts of this state must assume jurisdiction of Federal Employers’ Liability Act cases and afford litigants a trial on the merits regardless of state procedure or practice. We have grave doubts that the Congress of the United States can require the courts of this state to assume jurisdiction and try all cases. However, we need not decide that question for the reason that we have concluded that neither the Federal Employers’ Liability Act nor other federal
In the case of Chambers v. Baltimore & Ohio R. R. Company, 207 U. S. 142, 28 S. Ct. 34, 35, 52 L. Ed. 143 (1907), the Supreme Court of the United States, in dealing with a cause of action running to a non-resident, founded upon the death of a locomotive engineer occurring in a foreign jurisdiction, announced the following principles as applicable at that time:
“In the decision of the merits of the case there are some fundamental principles which are of controlling effect. The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship, and must be allowed by each state to the citizens of all other states to the precise extent that it is allowed to its own citizens. Equality of treatment in this respect is not left to depend upon comity between the states, but is granted and protected by the Federal Constitution. Corfield v. Coryell, [6 Fed. Cas. No. 3,230, p. 546] 4 Wash. C. C. 371, 380, per Washington, J.; Ward v. Maryland, 12 Wall. 418, 430, [79 U. S. 418] 20 L. Ed. [449, 452], per Clifford, J.; Cole v. Cunningham, 133 U. S. 107, 114, [10 S. Ct. 269, 33 L. Ed. 538 [542], ], per Fuller, C. J.; Blake v. McClung, 172 U. S. 239, 252, 19 S. Ct. 165, 43 L. Ed 432, [437], per Harlan, J
“But, subject to the restrictions of the Federal Constitution, the state may determine the limits of the jurisdiction of its courts, and the character of the controversies which shall be heard in them. The state policy decides whether and to what extent the state will entertain in its courts transitory actions, where the causes of action have arisen in other jurisdictions. Different states may have different policies and the same state may have different policies at different times. But any policy the state may choose to adopt must operate in the same way on its own citizens and those of other states. The privileges which it affords to one class it must afford to the other. Any law by which privileges to begin actions in the courts are given to its own citizens and withheld from the citizens of other States is void, because in conflict with the supreme law of the land.” (Emphasis ours)
In the Second Employers’ Liability Act cases (Mondou v. New York, N. H. & H. R. Co.), 223 U. S. 1, 32 S. Ct. 169, 177, 56 L. Ed. 327, 38 L. R. A., N. S., 44 (1912),
“We are quite unable to assent to the view that the enforcement of the rights which the congressional act creates was originally intended to be restricted to the Federal courts. The act contains nothing which is suggestive of such a restriction, and in this situation the intention of Congress was reflected by the provision in the general jurisdictional act. ‘That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the Constitution or laws of the United States.’ 25 Stat. at L. 433, chap. 866, § 1, U. S. Comp. Stat. 1901, p. 508; Robb v. Connolly, 111 U. S. 624, 637, 4 S. Ct. 544, 28 L. Ed. 542, 546; United States v. Barnes, 222 U. S. 513, 32 S. Ct. 117, 56 L. Ed. 291. This is emphasized by the amendment engrafted upon the original act in 1910, to the effect that ‘the jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several states, and no case arising under this act, and brought in any state court of competent jurisdiction shall be removed to any court of the United States.’ The amendment, as appears by its language, instead of granting jurisdiction to the state courts, presupposes that they already possessed it.” (Only last emphasis ours.)
“Because of some general observations in the opinion of the supreme court of errors, and to the end that the remaining ground of decision advanced therein may be more accurately understood, we deem it well to observe that there is not here involved any attempt by Congress to enlarge or regulate the jurisdiction of state courts, or to control or affect their modes of procedure, but only a question of the duty of such a court, when its ordinary jurisdiction, as prescribed by local laws, is appropriate to the occasion, and is invoked in conformity with those laws, to take cognizance of an action to enforce a right of civil recovery arising under the act of Congress, and susceptible of adjudication according to the prevailing rules of procedure.” (Emphasis ours.)
The United States Supreme Court in the case of Douglas v. New York, N. H. & H. R. Co., 279 U. S. 377, 49 S. Ct. 355, 356, 73 L. Ed. 747 (1929), which involved the constitutionality of New York state statutes relating to actions against foreign corporations by non-resi-
“As to the grant of jurisdiction in the Employers’ Liability Act that statute does not purport to require State Courts to entertain suits arising under it, but only to empower them to do so, so far as the authority of the United States is concerred. It may very well be that if the Supreme Court of New York were given no discretion, being otherwise competent, it would be subject to a duty. But there is nothing in the Act of Congress that purports to force a duty upon such Courts as against an otherwise valid excuse. Second Employers’ Liability Cases, [Mondou v. New York, N. H. & H. R. Co.] 223 U. S. 1, 56, 57, 32 S. Ct. 169, 56 L. Ed. 327, 38 L. R. A,, N. S., 44.” (Emphasis ours.)
In McKnett v. St. Louis & S. F. Ry. Co., 292 U. S. 230, 54 S. Ct. 690, 692, 78 L. Ed. 1227 (1934), the United States Supreme Court reversed the decision of the Supreme Court of the State of Alabama, which had held that no Alabama court had jurisdiction of any suit against a foreign corporation in respect to a cause of action arising in another state under federal law since the state statute providing for jurisdiction over foreign controversies was limited to suit arising under the law of another state. The action was brought under the F. E. L. A. and Mr. Justice BRANDEIS, speaking for the court said:
“While Congress has not attempted to compel states to provide courts for the enforcement of the Federal Employers’ Liability Act (Douglas v. New York, New Haven & Hartford R. R. Co., 279 U. S. 377, 387, 49 S. Ct. 355, 73 L. Ed. 747), the Federal Constitution prohibits state courts of general jurisdiction from refusing to do so solely because the suit is brought under a federal law. The denial of jurisdiction by the Alabama court is based solely upon the source of law sought to be enforced. The plaintiff is cast out because he is suing to enforce a federal act. A state may not discriminate against rights arising under federal laws.”
In November, 1941, the Supreme Court of the United States in the case of Baltimore & Ohio Railroad Co. v. Kepner, 314 U. S. 44, 62 S. Ct. 6, 9, 86 L. Ed. 28, 37, 136 A. L. R. 1222, passed on the right of an Ohio court to enjoin a resident of that state from further prosecuting in another state a cause of action arising under the F. E. L. A. In that
“We read the opinion of the Supreme Court of Ohio to express the view that if it were not for section 6 of the Employers’ Liability Act the requested injunction would be granted on the undisputed facts of the petition. Section 6 establishes venue for an action in the Federal Courts. As such venue is a privilege created by Federal statute and claimed by respondent the Supreme Court of Ohio felt constrained by the Supremacy Clause to treat Section 6 as decisive of the issue. It is clear that the allowance or denial of this federal privilege is a matter of federal law, not a matter of state law under Erie R. Co. v. Tompkins, 304 U. S. 64, 72, 588 S. Ct. 817 [819], 82 L. Ed. 1188, [1191], 114 A. L. R. 1487. Its correct decision depends upon a construction of a federal act. Consequently the action of a state court must be in accord with the federal statute and the federal rule as to its application rather than state statute, rule or policy.
“Petitioner presses upon us the argument that the action of Congress gave an injured railway employee the privilege of extended venue, subject to the usual powers of the state to enjoin what in the judgment of the state courts would be considered an improper use of that privilege. This results, says petitioner, because the Act does not in terms exclude this state power. As courts of equity admittedly possessed this power before the enactment of Section 6, the argument continues, it is not to be lightly inferred that the venue privilege was in disregard of this policy. But the federal courts have felt they could not interfere with suits in far federal districts where the inequity alleged was based only on inconvenience. There is no occasion to distinguish between the power and the propriety of its exercise in this instance since the limits of the two are here co-extensive. The privilege was granted because the general venue provisions worked injustices to employees. It is obvious that no state statute could vary the
venue and we think equally true that no state court may interfere with the privilege, for the benefit of the carrier or the national transportation system, on the ground of inequity based on cost, inconvenience or harassment. When the section was enacted it filled the entire field of venue in federal courts. A privilege of venue granted by the legislative body which created this right of action cannot be frustrated for reasons of convenience or expense.”
Mr. Justice FRANKFURTER wrote a dissenting opinion which was concurred in by the Chief Justice and Mr. Justice ROBERTS. This dissenting opinion brings out in bold relief the divergent views members of that court held with respect to whether the venue provisions of the F. E. L. A. limit the right of a state court to deal with citizens of its forum. The dissenting justices announced their concept of the law in the following language:
“Nor does it question the familiar doctrine of forum non conveniens under which a court having statutory jurisdiction may decline its facilities to a suit that in justice should be tried elsewhere. See Canada Malting Co. v. Paterson Steamships, 285 U. S. 413, 422, 423, 52 S. Ct. 413, [415], 76 L. Ed. 837, [842, 843]; Mass. v. Missouri, 308 U. S. 1, 19, 60 S. Ct. 39, [43], 84 L. Ed. 3, [10]; Rogers v. Guaranty Trust Co., 288 U. S. 123, 130, 131, 53 S. Ct. 295, [297, 298], 77 L. Ed. 652, 656, 657, 89 A L. R. 720. These manifestations of a civilized judicial system are firmly imbedded in our law. See Foster, Place of Trial in Civil Actions, 43 Harvard L. Rev. 1217; Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Columbia L. Rev. 1. Nor does the decision give new currency to the discredited notion that there is a general lack of power in the state courts to enjoin proceedings in federal courts. Cf. Princess Lida [of Thurn and Taxis] v. Thompson, 305 U. S. 456, 466, 59 S. Ct. 275, [280], 83 L. Ed. 285, [291]; Warren, Federal and State Court Interference, 43 Harvard L. Rev. 345. Nothing in Article III of the Constitution or in the legislation by which Congress has vested judicial power in the federal courts justifies such a doctrine.
“And so the basis of the decision of the Court must be found, if anywhere, in the terms of the venue provision of the Federal Employers’ Liability Act. The section provides simply, that an action under the Act ‘may be brought in a district court of the United States, 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,’ that the jurisdiction of the federal courts shall be ‘concurrent’ with that of the state courts, and that no action brought in a state court of competent jurisdiction shall be removed to a federal court. [April 5, 1910] 36 Stat. [at L.] 291, [Chap. 143],
45 U. S. C. A. § 56 . The phrasing of the section is not unique; it follows the familiarpattern generally employed by Congress in framing venue provisions. E. g. 28 U. S. C. A. § 112 (suits based upon diversity of citizenship);28 U. S. C. A. § 53 (suits by or against China Trade Act corporations);28 U. S. C. A. § 104 (suits for penalties and forfeitures);28 U. S. C. A. § 105 (suits for recovery of taxes);28 U S. C. A. § 41 (26) (b) (interpleader). The decision cannot rest, therefore, upon any pecularities of the language of the provision.“Nor can justification for the Court‘s conclusion be found in the legislative history of the section or the clearly expressed reasons of policy underlying its enactment. As the House and Senate committee reports show, H. Rept. No. 513, pp. 6-7, S. Rept. No. 432, pp. 3-4, 61st Cong., 2d Sess., Congress was aware of the hardship by which under the original Employers’ Liability Act of April 22, 1908, 35 Stat. [at L.] 65, chap. 149,
45 U. S. C. A. § 51 , the plaintiff could bring his action only at the railroad‘s ‘residence.’ Cound v. Atchison, T. & S. F. R. Co., C. C., 173 F. 527. The amendment of 1910 greatly enlarged the range of a plaintiff‘s convenience in bringing suit. It is not disputed that the amendment was intended to open to a plaintiff courts from which he previously was barred. But that is not the question before us. The problem is whether the Act was intended to give a plaintiff an absolute and unqualified right to compel trial of his action in any of the specified places he chooses, thereby not only depriving state courts of their old power to protect against unjustly oppressive foreign suits, but also forbidding Federal courts to decline jurisdiction ‘in the interest of justice’ on familiar grounds of forum non conveniens. See Canada Malting Co. v. Paterson Steamships, 285 U. S. 413, 422, 423, 52 S. Ct. 414 [415], 76 L. Ed. 837, 842, 843. Nothing in the history of the 1910 amendment indicates that its framers contemplated any such vast transformation in the established relationship between federal and state courts and in the duty of the federal courts to decline jurisdiction ‘in the interest of justice.’ On the contrary, the expressed considerations of policy underlying the amendment were fundamentally the same as those underlying the equitable power to restrain oppressive suits and the reciprocal doctrine of forum non conveniens: It does not comport with equity and justice to allow a suit to be litigated in a forum where, on the balance, unnecessary hardship and inconvenience would be cast upon one party without any compensatingly fair convenience to the other party, but where, on the contrary, the suit might more conveniently be litigated in another forum available equally to both parties.”
Subsequently, in 1942, in the case of Miles v. Illinois Central Railway Company, 315 U. S. 698, 62 S. Ct. 827, 830, 86 L. Ed. 1129, 146 A. L. R. 1104, the Supreme Court went one step further when it was presented with the question as to whether or not one state court could enjoin its citizens from suing a non-resident defendant carrier on an F. E. L. A. claim in a court of general jurisdiction of another state.
“The opportunity to present causes of action arising under the F. E. L. A. in the state courts came, however, not from the state law, but from the federal. By virtue of the Constitution, the courts of the several states must remain open to such litigants on the same basis that they are open to litigants with causes of action springing from a different source. This is so because the Federal Constitution makes the laws of the United States the supreme law of the land, binding on every citizen and every court and enforceable wherever jurisdiction is adequate for the purpose. Second Employers’ Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 56-59, 32 S. Ct. 169, [177, 178], 56 L. Ed. 327, [348-350], 38 L. R. A., N. S., 44, 1 N. C. C. A. 875. The Missouri court here involved must permit this litigation. To deny citizens from other states, suitors under F. E. L. A., access to its courts would, if it permitted access to its own citizens, violate the Privileges and Immunities Clause. Constitution,
Art. IV, § 2 ; McKnett v. St. Louis & S. F. R. Co., 292 U. S. 230, 233, 54 S. Ct 690, [691], 78 L. Ed. 1227, [1229]. Since the existence of the cause of action and privilege of vindicating rights under the F. E. L. A. in state courts spring from federal law, the right to sue in state courts of proper venue where their jurisdiction is adequate is of the same quality as the right to sue in federal courts. It is no more subject to interference by state action than was the federal venue in the Kepner Case. [Baltimore & O. R. Co. v. Kepner, 137 Ohio St. 409, 30 N. E. 2d 982]” (Emphasis ours)“This is not to say that states cannot control their courts. We do not deal here with the power of Missouri by judicial decision or legislative enactment to regulate the use of its courts generally as was approved in the Douglas or in the Chambers Cases, note 6 supra. We are considering another state‘s power to so control its own citizens that they cannot exercise the federal privilege of litigating a federal right in the court of another state.” (Emphasis ours)
Mr. Justice FRANKFURTER again wrote the dissenting opinion and he comprehensively touches on the authority of Congress to direct state courts in the operation of their business. We quote from the dissenting opinion for the reason that when consideration is given to the thoughts
“This is a conventional provision. There is nothing novel or distinctive about it. Recognition of concurrent jurisdiction in the state courts to vindicate federal rights is found in the first Judiciary Act of (September 24) 1789. 1 Stat. [at L.], 73, 77. [chap. 20] And the statute books are replete with instances in which Congress has acknowledged the existence of this jurisdiction in the state courts unless explicitly withheld from them. See the discussion of Mr. Justice Bradley in Claflin v. Houseman, 93 U. S. 130, 139-143, 23 L. Ed. 833 [839, 840]. The essence of Section 6 is merely that the ‘state courts are open to a plaintiff suing under the Act, and that if he chooses to bring suit in a state court, the defendant may not remove the cause to a federal court.’ So far as language conveys ideas, the Act affords no intimation that Congress intended anything more.
* * * * * *
“The utilization of state courts for the vindication of federal rights does not require that their established procedures be remodeled or that their customary modes for administering justice be restricted. ‘And it was of course presumably an appreciation of the principles so thoroughly settled which caused Congress, in the enactment of the Employers’ Liability Act, to clearly contemplate the existence of a concurrent power and duty of both Federal and state courts to administer the rights conferred by the statute in accordance with the modes of procedure prevailing in such courts.’ Minneapolis & St. L. R. Co. v. Bombolis, 241 U. S. 211, 218, 36 S. Ct. 595, [597], 60 L. Ed. 961, [964], L. R. A. 1917 A, 86, Ann. Cas. 1916 E, 505; and see Second Employers’ Liability Cases, [Mondou v. New York, N. H. & H. R. Co.] 223 U. S. 1, 56, 32 S. Ct. 169 [177], 56 L. Ed. 327, [348], 38 L. R. A., N. S., 44 [1 N. C. C. A. 875]. The mere fact that a federal right is the basis of suit cannot therefore deprive the state courts of the power to use their customary procedures for the achievement of justice. In simply taking advantage of the facilities afforded by the courts of the states, Congress cannot be deemed to have altered the settled jurisprudence of the states so as to operate more favorably for federal rights than for similar rights created by the states themselves. Such drastic inroads upon the authority of the states should be made only upon clear Congressional mandate.” (Emphasis ours.)
If we interpret Mr. Justice REED‘S statement that “the Missouri court here involved must permit this litigation” as meaning that Congress intended to make the venue requirements mandatory on all state courts then this concept does not become the holding of the Court as Mr. Justice JACKSON, who was one of the five members joining in the majority opinion, expressly disagrees with the state-
“I do not, however, agree with the statement in Mr. Justice Reed‘s opinion that ‘the Missouri court here involved must permit this litigation.’ It is very doubtful if any requirement can be spelled out of the federal Constitution that a state must furnish a forum for a nonresident plaintiff and a foreign corporation to fight out issues imported from another state where the cause of action arose. It seems unnecessary to decide now whether this litigation could be imposed on the Missouri court, for it appears to have embraced the litigation. Even if Missouri, by reason of its control of its own courts might refuse to open them to such a case, it does not follow that another state may close Missouri‘s courts to one with a federal cause of action. If Missouri elects to entertain the case, the courts of no other state can obstruct or prevent its exercise of jurisdiction as conferred by the federal statute or its right to obtain evidence and to distribute the proceeds, if any, in accordance with the Federal Employers’ Liability Act. I therefore favor reversal.” (Emphasis ours.)
In the case of Herb v. Pitcairn, 324 U. S. 117, 122, 65 S. Ct. 459, 460, 89 L. Ed. 789 (1945), and which involved the venue of F. E. L. A. cases, Mr. Justice JACKSON, speaking for the United States Supreme Court, said:
“Whether any case is pending in the Illinois courts is a question to be determined by Illinois law, as interpreted by the Illinois Supreme Court. For as we have said of the Federal Employers’ Liability Act, ‘we deem it well to observe that there is not here involved any attempt by Congress to enlarge or regulate the jurisdiction of state courts, or to control or affect their modes of procedure, but only a question of the duty of such a court when its ordinary jurisdiction, as prescribed by local laws, is appropriate to the occasion, and is invoked in conformity with those laws, to take cognizance of an action to enforce a right of civil recovery arising under the act of Congress, and susceptible of adjudication according to the prevailing rules of procedure.’ Mondou v. New York, N. H. & H. R. Co. 223 U. S. 1, 56, 57, 32 S. Ct. 169, 178, 56 L. Ed. 327, 38 L. R. A. N. S., 44. ‘As to the grant of jurisdiction in the Employers’ Liability Act, that statute does not purport to require State Courts to entertain suits arising under it but only to empower them to do so, so far as the authority of the United States is concerned. * * * But there is nothing in the Act of Congress that purports to force a duty upon such courts as against an otherwise valid excuse.’ Douglas v. New York, N. H., & H. R. Co., 279 U. S. 377, 387, 388, 49 S. Ct. 355, 356, 73 L. Ed. 747. And see Chambers v. Baltimore & Ohio R. Co., 207 U. S. 142, 148, 149, 28 S. Ct. 34, 35, 36, 52 L. Ed. 143; St. Louis I. M. & S. R. Co. v. Taylor, 210 U. S. 281, 28 S. Ct. 616, 52 L. Ed. 1061; John v. Paullin, 231, U. S. 583, 34 S. Ct. 178, 58 L. Ed. 381.” (Emphasis ours.)
“It is conceded that the venue statutes of the United States permitted the plaintiff to commence his action in the Southern District of New York and empower that court to entertain it But that does not settle the question whether it must do so. Indeed, the doctrine of forum non conveniens can never apply if there is absence of jurisdiction or mistake of venue.
“This Court, in one form of words, or another, has repeatedly recognized the existence of the power to decline jurisdiction in exceptional circumstances. As formulated by Mr. Justice Brandeis the rule is: ‘Obviously, the proposition that a court having jurisdiction must exercise it, is not universally true; else the admiralty court could never decline jurisdiction on the ground that the litigation is between foreigners. Nor is it true of courts administering other systems of our law. Courts of equity and of law also occasionally decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or non-residents or where for kindred reasons the litigation can more appropriately be conducted in a foreign tribunal.’ Canada Malting Co. v. Paterson Steamships, 285 U. S. 413, 422, 423, 52 S. Ct. 413, [415], 76 L. Ed. 837 [842, 843].
“We later expressly said that a state court ‘may in appropriate cases apply the doctrine of forum non conveniens.’ Broderick v. Rosner, 294 U. S. 629, 643, 55 S. Ct. 589, [592], 79 L. Ed. 1100, [1107], 100 A. L. R. 1133; Williams v. North Carolina, 317 U. S. 287, 294, note 5, 63 S. Ct. 207, [211], 87 L. Ed. 279, [283], 143 A. L. R. 1273. Even where federal rights binding on state courts under the Constitution are sought to be adjudged, this Court has sustained state courts in a refusal to entertain a litigation between a non-resident and a foreign corporation or between two foreign corporations. Douglas v. New York, N. Η. & H. R. Co., 279 U. S. 377, 49 S. Ct. 355, 73 L. Ed. 747; Anglo-American Provision Co. v. Davis Provision Co. [No. 1], 191 U. S. 373, 24 S. Ct. 93, 48 L. Ed 225. It [has] held the use of an inappropriate forum in one case an unconstitutional burden on interstate commerce. Davis v. Farmers’ Co-op. Equity Co. 262 U. S. 312, 43 S. Ct. 556, 67 L. Ed. 996. On substantially forum non conveniens grounds we have required federal courts to relinquish decision of cases within their jurisdiction where the court would have to participate in the administrative policy of a state. Railroad Commission [of Texas] v. Rowan & N. Oil Co., 311 U. S. 570, 61 S. Ct. 343, 85 L. Ed. 358; Burford v. Sun Oil Co., 319 U. S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424; but cf. Meredith v. [City of] Winter Haven, 320 U. S. 228, 64 S. Ct. 7, 88 L. Ed. 9. And most recently we decided Williams v. Green Bay & W. R. Co., 326 U. S. 549, [90 L. Ed. 311], 66 S.
“It is true that in cases under the Federal Employers’ Liability Act, [
45 U. S. C. A. § 51 et seq. ], we have held that plaintiff‘s choice of a forum cannot be defeated on the basis of forum non conveniens. But this was because the special venue act under which those cases are brought was believed to require it. 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 C. R. Co., 315 U. S. 698, 62 S. Ct. 827, 86 L. Ed. 1129, 146 A. L. R. 1104. Those decisions do not purport to modify the doctrine as to other cases governed by the general venue statutes.
* * * * * *
“The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. These statutes are drawn with a necessary generality and usually give a plaintiff a choice of courts, so that he may be quite sure of some place in which to pursue his remedy. But the open door may admit those who seek not simply justice, but perhaps justice blended with some harassment. A plaintiff sometimes is under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself.“Many of the states have met misuse of venue by investing courts with a discretion to change the place of trial on various grounds, such as the convenience of witnesses and the ends of justice. The federal law contains no such express criteria to guide the district court in exercising its power. But the problem is a very old one affecting the administration of the courts as well as the rights of litigants, and both in England and in this country the common law worked out techniques and criteria for dealing with it.” (Emphasis ours.)
In the two latest cases dealing with this subject there is language which might be construed to mean that prior to the time Congress enacted Section 1404 (a) forum non conveniens was never available on F. E. L. A. suits. However, in both instances it must be considered that the Court was disposing of cases which reached the Supreme Court through the Federal Court system. In Ex parte Collett, 337 U. S. 55, 69 S. Ct. 944, 945, 93 L. Ed. 1207, 10 A. L. R. 2d 921 (1949), Mr. Chief Justice VINSON delivered the opinion of the court, and in the course of the opinion made the following statement:
“Prior to the current revision of Title 28 of the United States Code, forum non conveniens was not available in Federal Employers’ Liability Act suits. Baltimore & Ohio R. Co. v. Kepner, 1941, 314 U. S. 44, 62 S. Ct. 6, 86 L. Ed. 28, 136 A. L. R. 1222; Miles v. Illinois Central R Co., 1942, 315 U. S. 698,
62 S. Ct. 827, 86 L. Ed. 1129, 146 A. L. R. 1104; see Gulf Oil Corp. v. Gilbert, 1947, 330 U. S. 501, 505, 67 S. Ct. 839, 91 L. Ed. 1055. The new Code, however, provides that ‘For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. This is § 1404 (a) * * *”
In a companion case, decided the same day, United States v. National City Lines, Inc., 337 U. S. 78, 69 S. Ct. 955, 956, 93 L. Ed. 1226, Mr. Chief Justice VINSON in disposing of the doctrine of forum non conveniens in antitrust suits stated:
“This is the second time that an order of the court below, the United States District Court for the Southern District of California, attempting to effectuate a transfer of the case from Los Angeles to Chicago, has been before this Court. When respondents’ motion was first granted, the District Court dismissed the action, 1947, 7 F. R. D. 456, inasmuch as the federal courts then lacked statutory power to transfer cases. We reversed, holding that forum non conveniens was not applicable in anti-trust suits. United States v. National City Lines [1948], 334 U. S. 573, 68 S. Ct. 1169, 92 L. Ed. 1584, [June 7, 1948]. After September 1, 1948, the effective date of the present Judicial Code, respondents filed a new motion under the doctrine of forum non conveniens, citing
§ 1404 (a) , which reads as follows: ‘For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.’ Again the District Court below granted the motion. It ordered the case transferred. D. C. 1948, 80 F. Supp. 734. The Government thereupon submitted in this Court a motion for leave to file petition for writ of certiorari. We assigned the case for hearing on this motion. 1948, 335 U. S. 897, 69 S. Ct. 296 [93 L. Ed. 432].”
We have attempted to set out the important United States Supreme Court cases dealing with the doctrine of forum non conveniens. At first blush it may appear that there are inconsistent statements and holdings in those cases discussing the doctrine as applied in Federal Employers’ Liability Act cases. However, by limiting the statements to context and the issues involved we have concluded the various cases are consistent and each can be reconciled with the others. This conclusion is based upon the evolution of the doctrine and the system to which it was being applied by the United States Supreme Court at the time of the decision. Included in the previously cited cases
Prior to the enactment of
A different principle is involved and, we believe, has been announced when a suit is instituted in a state court. In practically every cited case we find statements to the effect that the state concerned determines the limitations of the jurisdiction of its courts and the character of the controversy which it will hear. Each separate state decides whether and to what extent it will entertain in its courts transitory causes of action when they arise in other jurisdictions. It seems that weaving throughout the cases is the principle announced in the Second Employers’ Liability Act Cases, supra. There the Supreme Court held that when Congress enacted the
While the United States Supreme Court has held that one state may not enjoin one of its citizens from prosecuting a cause of action under a
In order to reconcile the doctrine announced in the case of Douglas v. New York, N. H. & H. R. Co., supra, with the holdings in the other cases and for us to give full force and effect to the language used in each of the decisions we must necessarily conclude that the United States Supreme Court has held that prior to the enactment of
A search of the reporters for state cases dealing with this subject discloses that the states of New York, Ohio, New Jersey and Illinois have passed on this or a closely related principle and have adopted the doctrine that forum non conveniens can be used in all types of cases, including
The Supreme Court of California in the case of Leet v. Union Pacific R. Co. 25 Cal. 2d 605, 155 P. 2d 42, 44,
“Whatever may have been the rule on the subject from time to time it is now settled that the state court having jurisdiction may not refuse to exercise it. The doctrine of forum non conveniens, claim of a burden on interstate commerce, or war conditions constitute no justification for a refusal to exercise jurisdiction.
“The rule of forum non conveniens is an equitable one embracing the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action before it may be more appropriately and justly tried elsewhere. If the plaintiff by reason of section 56 has an absolute right to have the action tried in the named courts, there is no room for the doctrine. It has been repeatedly held that the right to have an action brought under the act tried in one of the mentioned federal district courts is absolute. Connelly v. Central R. Co. of New Jersey, D.C., 238 F. 932; see Baltimore & Ohio R. Co. v. Kepner, 314 U. S. 44, 62 S. Ct. 6, 86 L. Ed. 28, 136 A.L.R. 1222; Miles v. Illinois Central R. Co., 315 U.S. 698, 62 S. Ct. 827, 86 L. Ed. 1129, 146 A.L.R. 1104; Trapp v. Baltimore & O. R. Co., D.C., 283 F. 655. And that right cannot be defeated by the doctrine of forum non conveniens, convenience, or other equitable grounds such as vexatious suits or anything else except congressional action; the court has a duty to exercise its jurisdiction. Schendel v. McGee, 8 Cir. 300 F. 273; Southern R. Co v. Painter, 8 Cir., 117 F.2d 100; Southern R. Co. v. Cochran, 6 Cir., 56 F. 2d. 1019; Chesapeake & Ohio R. Co. v. Vigor, 6 Cir., 90 F. 2d. 7,
certiorari denied 302 U.S. 705, 58 S. Ct. 25, 82 L. Ed. 545; Rader v. Baltimor & Ohio R. Co., 7 Cir., 108 F. 2d 980; Miles v. Illinois Central R. Co., supra; Baltimore & Ohio R. R. Co. v. Kepner, supra; Union Pac. R. Co. v. Utterback, supra (Union Pac. R. Co. v. Thatcher) [173 Or. 572, 146 P. 2d 76, 769].”
Mr. Justice Edmonds, the author of the dissenting opinion, states his interpretation in the following language:
“The decisions of the Supreme Court of the United States do not compel the conclusion that a state court is powerless to refuse jurisdiction of any action brought under the
Federal Employers’ Liability Act, 45 U. S. C. A. § 51 . On the contrary, in its most recent interpretation of that legislation, five members of the court were of the view that the venue provision (section 6) does not compel a state to open its forums to all cases arising under the statute under all circumstances. Miles v. Illinois Central R. Co., supra. And consistent with that view are a number of prior decisions. McKnett v. St. Louis & S. F. R. Co., 292 U. S. 230, 54 S. Ct. 690, 78 L. Ed. 1227; Denver & Rio Grande W. R. Co. v. Terte, 284 U. S. 284, 52 S. Ct. 152, 76 L. Ed. 295; Douglas v. New York, New Haven & Hartford R. Co., 279 U. S. 377, 49 S. Ct. 355, 73 L. Ed. 747; Michigan Cent. R. Co. v. Mix, 278 U. S. 492, 49 S Ct. 207, 73 L. Ed. 470; Hoffman v. Missouri ex rel. Foraker, 274 U. S. 21, 47 S. Ct. 485, 71 L. Ed. 905; Atchison, Topeka & Santa Fe. R. Co. v. Wells, 265 U. S. 101, 44 S. Ct. 469, 68 L. Ed. 928; Davis v. Farmers’ Co-operative Equity Co., 262 U. S. 312, 43 S. Ct. 556, 67 L. Ed. 996.“In the Miles case, Justices Frankfurter, Roberts, Byrnes, and Chief Justice Stone were of the opinion that ‘Section 6 did not give the state courts compulsive jurisdiction,’ and Justice Jackson, in sharing that view, stated: ‘It is very doubtful if any requirement can be spelled out of the Federal Constitution that a state must furnish a forum for a non-resident plaintiff and a foreign corporation to fight out issues imported from another state where the cause of action arose.’ Under this construction of the statute, it was the duty of the trial judge in the present litigation to hear and determine, upon the merits, the railroad company‘s motions for a continuance, exercising a sound discretion as to whether, upon the facts presented, and the trials of the two actions should be continued for either an indefinite or a stated period.”
The Supreme Court of Missouri in one of the latest cases we have been able to find, State ex rel. Southern Ry. Co. v. Mayfield, 359 Mo. 827, 224 S. W. 2d 105, 109, held that the the doctrine of forum non conveniens was inapplicable in
“Thus it is clear that under the Kepner and Miles cases, supra, a state court cannot dismiss a Federal Employers’ Liability case solely under the forum non conveniens doctrine. ‘The Federal Employers’ Liability Act, as interpreted by Kepner, increases the number of places where the defendant may be sued and makes him accept the plaintiff‘s choice.’ * * * Gulf Oil Corporation v. Gilbert, supra, 67 S. Ct. 839, loc. cit. 842, [91 L. Ed. 1055, 330 U. S. 501].
“Relators rely mainly upon the case of Douglas v. New York, N. H. & H. R. Co., 279 U. S. 377, 49 S. Ct. 355, 73 L. Ed. 747. In that case a resident of Connecticut brought a suit in a state court of New York under the
Federal Employers’ Liability Act against the defendant, a Connecticut corporation, for personal injuries inflicted in Connecticut. The trial court dismissed the action under a statute which it held gave it discretion in suits brought by non-resident plaintiffs. The trial court action was affirmed by the New York Court of Appeals. 248 N. Y. 580, 162 N. E. 532. This was the statute in question: ‘An action against a foreign corporation may be maintained by another foreign corporation, or by a non-resident, in one of the following cases only: * * * 4. Where a foreign corporation is doing business within this State.’Code Civ. Proc. § 1780 .“The Supreme Court of the United States held that this statute was not in violation of
Article 4, Section 2, of the Constitution of the United States , as discriminating between citizens of New York and citizens of other states where construed as using the word ‘resident’ in the strict primary sense of one actually living in the place for a time, irrespective of domicile. Such was the construction placed upon this statute by the New York Court of Appeals. 248 N. Y. 580, 162 N. E. 532. It also held that state courts are not required to entertain suits under theFederal Employers’ Liability Act , but are empowered to do so.“We do not think this case sustains the relator. The common law doctrine of forum non conveniens is not even mentioned in the opinion. In the first place, Missouri does not have a statute similar to the New York statute which the courts of the state have held to give them discretionary power to dismiss an action brought by a non-resident as distinguished from a citizen of another state. Also, Missouri permits citizens of this state to Federal Employer‘s Liability cases in its courts. To deny the same privilege to citizens of another state would violate
Article 4, Section 2, of the Constitution of the United States .”
The following excerpts are taken from cases which we believe sustain the views expressed by us. These cases are
The Supreme Court of the State of Ohio in Loftus v. Pennsylvania R. Co., 1923, 107 Ohio St. 352, 140 N. E. 94, 96, held that the venue provisions of the
“The next question for determination is whether section 11273, General Code, applies to causes of action arising under the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665 [45 U. S. C. A. §§ 51-59]), and whether the provisions of that act relating to jurisdiction make it compulsory upon the courts of general jurisdiction in this state to hear such causes even though such suits may be begun in a county where the plaintiff does not reside or where the cause of action did not arise.
“It has already been seen that the language of the amendment is broad enough to exclude such actions. The federal act contains the following provision:
“‘The jurisdiction of the courts of the United States under this act shall he concurrent with that of the courts of the several states.’ 36 Stat. at L. 291; section 8074, Barnes Fed. Code; section 8662, U. S. Comp. Stat. [45 U. S. C. A. § 56],
“It is undoubted that the trial courts of this state have jurisdiction of the subject-matter of causes arising under the federal act, and that in all cases where the plaintiff is able to come within the terms of the amendment of
section 11273, General Code , our trial courts have complete jurisdiction. While it is very clear that the Legislature of Ohio could confer compulsory jurisdiction upon the trial courts to hear all such cases, regardless of the residence of the plaintiff or the locality of the injury, it does not follow that the federal lawmaking power can thus confer compulsory jurisdiction; neither does it appear in the language above quoted that it has attempted to do so. The claims made by plaintiff in error lose sight of the clear distinction between creating a right and providing a remedy. The right is created by the enactment of the statute. The remedy is provided by establishing courts and declaring their jurisdiction.“An Illinois statute provides that—
“‘No action shall be brought or prosecuted in this state, to recover damages for a death occuring outside of this state.’ Laws 1903, p. 217 [Smith-Hurd Stats, c. 70 § 2].
“The case of Walton, Adm‘x v. Pryor, 276 Ill. 563, 115 N. E. 2, L. R. A.
1918 E, 914, was brought to recover upon a liability arising under the federal Employers’ Liability Act , and the question arose whether the Illinois courts were compelled to entertain an action where the death occurred outside of the state. The Supreme Court of Illinois held that the action could not be entertained, and that jurisdiction of the subject-matter could not be conferred even by consent of the parties. The court further stated that Congress cannot confer jurisdiction upon any court which it has not created, and that the federal Constitution contains no restriction upon the power of a state to determine the limits of the jurisdiction of its courts, except that the state must give to the citizens of other states the same rights that it accords to its own citizens.”
In 1927, the State of New York, in the case of Murnan v. Wabash Railway Company, 246 N.Y. 244, 158 N.E. 508, 509, 54 A.L.R. 1522, passed on the question of whether or or not the courts of that state could decline jurisdiction of an action brought under the
“Although the rule prohibits a court of general jurisdiction from refusing to exercise its jurisdiction in its discretion, it has often been held that the courts of this state may refuse in their discretion to entertain jurisdiction over causes of action arising out of a tort committed in a sister state where both the plaintiff and defendant are non-residents. Gregonis v. Philadelphia & R. Coal & I. Co., 235 N. Y. 152, 160, 139 N. E. 223, 32 A. L. R. 1, and cases cited. While no controlling reason compelled, the Special Term refused to assume jurisdiction. It refused, it would seem, for reasons of convenience, to hear the case, and vacated the service of the summons under the authorities referred to.
“The appellate division held that the
Federal Employers’ Liability Act which conferred, or recognized, concurrent jurisdiction in the state courts, made it mandatory upon the state court not to refuse to exercise its jurisdiction, when it had such jurisdiction, in any case brought under the act. It relied on the case of [Second Employers’ Liability Cases] Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1, 32 S. Ct. 169, 56 L. Ed. 327, 38 L. R. A., N. S., 44 [1 N. C. C. A. 875]. The case is authority for the bare proposition that, where the state courts would exercise their jurisdiction except for the fact that the action is brought under the act of Congress, they may not refuse to exercise jurisdiction because the action is brought under the laws of the United States. The court said:“‘The existence of the jurisdiction creates an implication of duty to exercise it. * * * We conclude that rights arising under the act in question may be enforced, as of right, in the courts of the states when their jurisdiction, as prescribed by local laws, is adequate to the occasion.’ * * *
“This general language read in connection with what was actually decided means nothing more than that the state courts must make no hostile discrimination against litigants who come within the act in question; that they must treat litigants under the federal act as other litigants are treated; that they are to act in conformity with their general principles of practice and procedure and are not to deny jurisdiction merely because the right of action arises under the act of Congress. “The court seems to make this meaning clear. It says, in substance, that it is advised by decisions of the supreme court of errors that the Superior Courts of the state of Connecticut are not only empowered to take cognizance of actions to recover for personal injuries and death, but are accustomed to exercise that jurisdiction in cases where the right of action arises under the laws of another state. It says further: ‘We deem it well to observe that there is not here involved any attempt by Congress to enlarge or regulate the jurisdiction of state courts, or to control or affect their modes of procedure, but only a question of the duty of such a court, when its ordinary jurisdiction, as prescribed by local laws, is appropriate to the occasion, and is invoked in conformity with those laws, to take cognizance of an action to enforce a right of civil recovery arising under the act of Congress, and susceptible of adjudication according to the prevailing rules of procedure.’ * * *
“The courts of New York exercise their discretion in all other cases where a tort action is brought by one non-resident against another under the laws of another state. The practice may be anomalous, but it is well established. That Congress has undertaken to regulate the exercise of jurisdiction by our courts by making compulsory what in other similar cases is discretionary seems an unreasonable conclusion and a resulting invasion of the powers of our tribunals as heretofore exercised. We conclude that a litigant who brings his action under the
federal Employers’ Liability Act stands before the court in no different attitude than a litigant who brings his action under the statute of a sister state. He may not be cast out because he is suing under the act of Congress. He may not enforce his rights merely because he is suing under the act.”
The Supreme Court of the State of New Jersey in 1940 held that the doctrine of forum non conveniens is applicable to the practice in that jurisdiction. In Anderson v. Delaware, L. & W. R. Co., 11 A. 2d 607, 608, 18 N. J. Misc. 153, Mr. Justice Wolber, speaking for the court said:
“It is contended, however, for the reasons stated, that our courts have the power to consider the circumstances of each particular case and to exercise their discretion to decline jurisdiction in such actions if it appears improper to entertain the same. It is asserted that the facts in the instant case are such that require that discretion to be exercised against these plaintiffs and accordingly remit them to the courts of their domicile.
“The doctrine invoked is something like the civil law plea of forum non conveniens. It has received extended treatment by the courts of this country. See extensive note following Gregonis v. Philadelphia & Reading Coal & Iron Company, 235 N. Y. 152, 139 N. E. 223, 32 A. L. R. 1 (resident v. foreign corporation for out-of-state tort), article, Blair, ‘The Doctrine of Forum, Non Conveniens in Anglo-American Law’ (1929) XXIX Col. L. Rev. 1, and articles by Foster, ‘Place of trial in Civil Actions,’ 43 Harv. L. Rev. 1217, and ‘Place of Trial, Intrastate Application of Intrastate Methods of Adjustment,’ 44 Harv. L. Rev. 41. Briefly stated, its rationale is that the courts should not allow their time to be taken up with the burden and expense of trying actions which ought under the circumstances to be brought in the jurisdiction where the parties reside, where the cause arose and where the home courts of litigants are open and provide an effectual remedy for the settlement of their grievances. Collard v. Beach, 93 App. Div. 339, 87 N. Y. S. 884. This principile is often embodied in statutes of some states. It has been of such long standing in other states as to be evidence of the public policy of those estates. Universal Adjustment Corp. v. Midland Bank, 281 Mass. 303, 184 N. E. 152, 87 A. L. R. 1407; Jackson & Sons v. Lumbermen‘s Mutual Casualty Ins. Co., 86 N. H. 341, 168 A. 895. It is applicable to actions in contract and tort, although the tendency is to apply it strictly in tort actions for personal injuries and moderately in commercial transactions. Werterheim v. Clergue, 53 App. Div. 122, 65 N. Y. S. 750; Davis v. Julius Kessler & Co., 118 Misc. 292, 194 N. Y. S. 9.”
It should be observed that the motion to dismiss was denied in this case because of the facts and circumstances indicating that the statute of limitations had run in the foreign jurisdiction and no real inconvenience was established.
In the case of Motley v. Kansas City Southern Railway Co., unreported, decided December 16, 1949, Judge Robson, speaking for the Superior Court of Cook County, Illinois, in ruling on a motion to dismiss a cause on the ground of forum non conveniens, stated:
‘The Court desires to discuss two cases decided since the opinion by Judge Epstein.
“In the case of Ex parte Collett, 337 U. S. 55, 69 S. Ct. 944, 93 L. Ed. 1207, 10 A. L. R. 2d 921, the Supreme Court of the United States sustained the right of the Federal District Court to transfer a
F. E. L. A. case under the newFederal Judicial Code, Title 28, Section 1404 (a) . Chief Justice Vinson, in deciding the case, said on page 56: ‘In this case we must decide whether the venue provisions of the Judicial Code render applicable the doctrine of forum non conveniens to actions under theF. E. L. A. ’ The Court, after a careful consideration of the statute decided it did have the right.“Much stress is laid by able counsel for the plaintiff on the recent decision of Missouri ex rel. Southern Ry. Co. v. Mayfield, et al., [359 Mo. 827, 224 S. W. 2d 105], of the Supreme Court of Missouri. To give credence to this decision would place our courts in the position of allowing the Congress of the United States to regulate our jurisdiction and to control and affect our modes of procedure. This, our court has consistently refused to do and is sustained in its position by the decisions of the Supreme Court of the United States. Douglas v. New York, New Haven & Hartford R. Co. 279, U. S. 377, [49 S. Ct. 355, 73 L. Ed. 747]; Second Employers Liability Act cases (Mondou v. N. Y. H. & H. R. Co) 223 U. S. 1, 56 and 57 [32 S. Ct. 169, 56 L. Ed. 327, 38 L. R. A., N. S. 44]; Miles v. Illinois Central R. R. Co., 315 U. S. 698, 704 [62 S Ct. 827, 86 L. Ed. 1129, 146 A. L. R. 1104]. Missouri apparently has no announced doctrine of forum non conveniens. Illinois does. Whitney v. Madden, 400 Ill. 185 [79 N. E. 2d 593]; Walton v. Pryor, 276 Ill. 563 [115 N. E. 2, L. R. A. 1918 E, 914].”
Plaintiff contends that if this court were to embrace the doctrine of forum non conveniens we would violate
In support of the claim of unconstitutional application plaintiff cites to us many cases in which this court has entertained causes of action arising in other jurisdictions under federal or state acts. We concede that the district courts of this state have consistently accepted jurisdiction of these cases and proceeded to try the cases. Moreover, this court has passed on the legal principles involved. There would be force to this contention if in any of the cases to which we are referred the doctrine of forum non conveniens had been in issue and this court had announced a holding contrary to the one adopted in this decision. A review of the many cases cited shows that a plea of inconvenience has not been interposed and this court has never been called upon to pass on the precise question. The absence of the plea may be accountd for because the amount of litigation arising in foreign jurisdictions and previously imported into the state was so insignificant that the doctrine was not considered. Modern times, with rapid communications, speedy travel, fertile grounds in certain localities for large verdicts, and centralization of legal representation have brought about a large influx of personal injury cases to many states, including this one, and the number of cases imported into a particular state is in direct proportion to the size of the verdicts rendered. The venue provisions of the
In an article in 56 Yale Law Journal, page 1234, the writer gives the history and development of this doctrine and perhaps suggests a reason why the plea is now becoming common-place in this type of litigation:
“In court battles, as in warfare, new weapons of attack tend to be neutralized by new defenses. State laws giving courts jurisdiction over non-residents in certain circumstances have resulted in increased maneuverability for plaintiff by providing a wider choice of forum. To counter this advantage defendants have increasingly been allowed to reply on the doctrine of forum non conveniens to restrict the plaintiff to the appropriate state court. Both Congress and the judiciary have, during the past few years evidenced a desire to bestow the doctrine upon the federal courts, and in two decisions of the past term the Supreme Court has approved dismissals on forum non conveniens grounds.
* * * * * *
“The growth of forum non conveniens in this country was long hindered by decisions indicating that state courts were required by the federal Constitution to hear actions between residents of other states. The right to sue in a state court was said to be one of the ‘Privileges’ which each state must extend to the citizens of the several states. It is now settled that jurisdiction may be refused on forum non conveniens grounds, though state courts have not until recently employed the Latin tag.”
In a footnote to the article there is a comment that “Words and Phrases (Perm. Ed. 1940) did not include the phrase, but it is now contained in the pocket supplement.”
Since the doctrine was stagnant until recent years it can be understood why in the many cases reaching this court litigants have not sought to have the policy of this state declared. This is not to say that the precept was entirely overlooked as the legislature, by virtue of
The last contention made by plaintiff questions the sufficiency of the showing made by the defendant to bring itself within the rule. This assignment requires consideration of the evidence presented to the trial court.
Granting discretionary power in the trial court to dismiss the cause for reasons of inconvenience, the power should only be exercised in exceptional circumstances and when an adequate showing has been made that the interests of justice require a trial in a more convenient forum. The mere fact that another court is more convenient for one party is not sufficient to justify a refusal to act, as any party who is a nonresident or foreign corporation can always show some good reason why a trial of the action is not convenient. The closing of the courts of this state to this plaintiff results in limiting what he considers a substantial right granted unto him. By doing so, the court acts against what plaintiff believes to be his best interests as the cause would not be instituted in this jurisdiction unless he believed he could obtain a more favorable judgment than if he were required to litigate his case in another or different forum; and the defendant would not make the motion unless it believed a less liberal jury could
We are convinced that at the time this matter was heard the trial court and counsel gave little heed to the factual background necessary to sustain a plea of inconvenience. The contents of the affidavit filed by the defendant were controverted and the attorney for the company requested that the matter be set down for hearing on the facts. Apparently, this request was not acted upon as plaintiff‘s counsel stated they would have no objection to the competency of any evidence given by counsel for the defendant and he proceeded to testify. As a result, much of the evidence on many of the factors needed to justify the decision is incomplete and missing and a substantial amount of that adopted by the court is hearsay. For instance, while the record shows it may be necessary for the defendant to call ten witnesses, three of whom it was claimed would be physicians and surgeons, the name, residences, and substance of their testimony could not be given. Likewise, as to the doctors: Who they were, where they resided, and the necessity for their presence and the substance of their testimony could not be given. The attorney testifying thought the burden placed on the defendant would be greater and prejudicial because the jury could not view the premises or the equipment. However, the cause of action was founded upon a defective hand brake and no good reason is shown why the equipment could not easily be made available to a local jury. Moreover, it is impossible to understand from the allegations of the complaint as to the manner in which the accident hap-
Another desirable factor which might be considered by a court in determining whether or not to exercise its discretion and dismiss a case is the condition of the court cal-
As to the inconvenience of the trial court, while plaintiff was afforded no opportunity to meet the evidence used as a foundation of the findings of fact on this factor because the court apparently took judicial notice of the condition of the calendar, any prejudice resulting therefrom is not material because we hold the evidence insufficient. The most that can be said for the evidence recited in the findings is that it establishes a total of 165 civil cases at issue and set for trial for the month of June, 1949, and that only about half that number could be disposed of during the month. Whether this is unusual or whether the number of cases at issue was substantially the same as they had been in previous periods is not disclosed. Whether the district courts in that
We are not convinced by the present record that this is one of those exceptional cases which should be dismissed. Accordingly, the judgments is reversed with directions to permit both parties to present evidence in support of or in opposition to the motion, if they so desire. Costs to appellant.
WOLFE, and McDONOUGH, JJ, concur.
PRATT, Chief Justice (concurring and dissenting).
I concur in the discussion of the cases and the law, in the prevailing opinion, leading up to the conclusion that to permit a dismissal of a foreign action such as this, by applying the principle of forum non conveniens does not offend against the Federal Constitution; and I concur in that conclusion.
I would, however, enter upon the consideration of the application of that principle to a foreign cause of action be-
This brings me to another point that I think should receive some special consideration. If the trial court makes a finding that his court calendars are congested—as was done here—we, as an appellate court should accept that finding with little or no question in our minds. After all, he, of all persons, is best able to judge of that fact, and his judgment should not be overthrown except by very strong evidence to the contrary; or by an obvious error appearing on the face of the record; or by a showing of an abuse of his discretion, or bias and prejudice, resulting in a conclusion against the evidence. Here, too, the trial court should be permitted to raise the matter on his own motion this as a matter of public interest.
The third and last point I wish to mention is that of the status of the foreign calendars where the case may have to be tried, if dismissed from our court. I am not convinced that that issue is entitled to very great weight. Naturally
These matters have received some consideration by the cases cited in the annotation in 32 A. L. R. 44.
WADE, Justice (concurring in the result).
I concur that the defendant‘s showing was not sufficient under the doctrine of forum non conveniens to sustain a dismissal. Though that holding disposes of this case since many other problems are discussed and determined in the prevailing opinion, I feel called upon at this time to express my disagreement with some of them.
I think that to dismiss a
Our constitution and statutes expressly give the district court of the third judicial district jurisdiction and venue of this case and the defendant was properly served with summons.
Though I find no express decision thereon, cases presenting this problem have been constantly before this court since prior to statehood. See Seley v. Southern Pacific Co., 1890, 6 Utah 319, 23 P. 751. Appellant in his brief cites at least fifty such cases and there have been many others, among them some are cited hereinafter. Also, there have been many such cases determined finally in the district courts. During this time the business of the second judicial district (including Ogden) and third judicial district (including Salt Lake City) has been constantly increasing and the number of judges have been doubled.
The railroads, though never raising this objection, have gone to great lengths to defeat and discourage this kind of litigation. In early days the weapon was the claim of champerty between attorney and client. In Croco v. O. S. L. R. Co., 1898, 18 Utah 311, 54 P. 985, 44 L. R. A. 285; Alfred H. Nelson v. Southern Pacific Railway Co., 15 Utah 325, 49 P. 644, Id., 18 Utah 244, 55 P. 364; Saunders v. Southern Pacific Railroad Co., 13 Utah 275, 44 P. 932, Id., 15 Utah 334, 49 P. 646; and Kennedy v. Oregon Shortline R. Co., 18 Utah 325, 54 P. 988, champerty between the attorney and plaintiff was unsuccessfully urged as a defense to any recovery. In Nelson v. Evans, 1900, 21 Utah 202, 60 P. 557, the railroad‘s attorneys prosecuted an action to require the attorneys who successfully prosecuted the case of Nelson v. Southern Pacific R. Co., supra, to divide their fees with a brother of the deceased; and in In re Evans, 1900, 22 Utah 366, 62 P. 913, 53 L. R. A. 952, 83 Am. St. Rep. 794, the same attorneys prosecuted disbarment proceedings against the attorneys Evans & Rogers, on the ground of champerty in the Nelson Case, supra, and they were found guilty of the charge and paid a specified sum to the widow of the deceased in that case to avoid being disbarred from practicing law
All of these cases either arose out of or were actions for the recovery of damages for accidental injuries or death which occurred out of this state by persons who were non-residents here. As hard as the railroad‘s attorneys fought these cases it is evident that had they believed that the courts had the discretionary power to dismiss them on the ground that trial in this state was inconvenient, they would have so moved the court. Their failure to raise this question is a concession that the courts had not such power.
The doctrine of forum non conveniens as applied to this kind of case is of very recent development, although the principles thereof have in isolated cases and under very different fact situations been recognized for a long time. For its history, purposes and effects see: The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Col. L. Rev. 1 (1929); Foster, The Place of Trial, 43 Har. L. Rev. 1217, (1929-30), and 44 Har. L. Rev. (1930-31); Forum Non Conveniens, A Federal Doctrine, 56 Yale L. J. 1234; Baucher, The Inconvenient Federal Forum,
If the courts of this state now have such discretion our policy in this respect has been drastically changed by this decision. Usually such changes of policy are for the legislature and not for the courts to make. The legislature is better qualified to make the necessary study of this complicated problem and formulate a proper and workable rule to meet it than is this court by its common law process.
Though the defendant is a foreign corporation that fact is entitled to little weight on whether this action should be dismissed. Defendant operates an extensive railroad system within this state and is a heavy taxpayer here and so it should be entitled to the use of our courts. If it is entitled to use our courts for its own litigation, is the fact that it is incorporated in another state a reason why others should not be able to sue it here? While there is a showing of a number of F. E. L. A. cases which arose without the state pending here, there is no showing that there are more cases pending or tried in Utah which arose in other states than there are cases pending or tried in other states which arose in Utah. The extent of the inconvenience necessary to sustain a dismissal under the forum non conveniens doctrine is a very uncertain question. Here there is a disagreement in this court thereon and in many cases the United States Supreme Court has divided as nearly even on this question as it is possible for an odd numbered court to do. In view of that fact this court may by adopting this doctrine increase its load rather than decrease it.
In adopting the statutory and constitutional provisions above cited, the legislature expressed the intention that where a court of this state, with jurisdiction of the subject matter obtains jurisdiction of the parties within
Courts have long recognized that the federal constitution
Further, I believe that the Federal Employers’ Liability Act, establishes not only the policy of the federal government, but that of the states. Congress is authorized to legislate on matters within the scope of its jurisdiction, not only for the federal government, but for all the states. It established not only a federal, but a state policy in allowing as it did by this act the injured employee to choose
Except for Mondou v. New York, N. H. & H. R. Co., supra, reversed by the United States Supreme Court, I find no case prior to this one where a state court, absent an express statutory authority therefor has refused to take cognizance of an F. E. L. A. case coming within its jurisdiction. The New York cases relied on in the prevailing opinion and cited herein are based on an express statutory authority as stated in the Douglas case, supra. The same is true of the Ohio case of Loftus v. Pennsylvania R. Co., 1923, 107 Ohio St. 352, 140 N. E. 94, and the other cases cited from that state hereinabove, as well as of the cases from Illinois. The Illinois statute is quoted in the prevailing opinion in its extract from the Loftus case. The case relied on in the prevailing opinion, from Illinois, is not from an appellate court, but was based on previous Illinois decisions under the statute hereinabove mentioned. The New Jersey case of Anderson v. Delaware, L. & W. R. Co., 11 A. 2d 607, 18 N. J. Misc. 153, relied on in the prevailing opinion is not an F. E. L. A. case. Thus all of these F. E. L. A. cases coming from appellate courts were decided before the Douglas case, and were based on express statutory provisions.
On the other hand, the more recent F. E. L. A. cases, and all that I have found not based on express statutory authority deny the discretionary power of the state courts to dismiss such actions under the doctrine of forum non conveniens. In State v. Mayfield, 1949, 359 Mo. 827, 224
Until the 1948 revision of
Mr. Justice Jackson, in his concurring opinion in Miles v. Illinois C. R. Co., supra, gave the following reasons for Congress adopting the policy of allowing the plaintiff in F. E. L. A. cases to choose the court in which his action may be tried:
“* * * This judicial treatment of the subject of venue leads Congress and the parties to think of the choice of a forum as a private matter between litigants and in cases like the present obscures the public interest in venue practices behind a rather fantastic fiction that a widow is harassing the Illinois Central Railroad. If Congress had left us free to consult the ultimate public interest in orderly resort to the judicial system, I should agree with Mr. Justice Frankfurter‘s conclusion. But the plaintiffs say that they go shopping, not by leave of the courts themselves, but by the authority of Congress. Whether the Congress has granted such latitude is our question.
“Unless there is some hidden meaning in the language Congress has employed, the injured workman or his surviving dependents may choose from the entire territory served by the railroad any place in which to sue, and in which to choose either a federal or a state court of which to ask his remedy. There is nothing which requires a plaintiff to whom such a choice is given to exercise it in a self-denying or large-hearted manner. There is nothing to restrain use of that privilege as all choices of tribunal are commonly used by all plaintiffs to get away from judges who are considered to be unsympathetic and to get before those who are considered more favorable; to get away from juries thought to be small-minded in the matter of verdicts and to get to those thought to be generous; to escape courts whose procedures are burdensome to the plaintiff and to seek out courts whose procedures makes the going easy.
“That such a privilege puts a burden on intrastate commerce may well be admitted, but Congress has the power to burden. The Federal Employers’ Liability Act itself leaves interstate commerce under the burden of a medieval system of compensating the injured railroad worker or his survivors. He is not given a remedy, but only a lawsuit. It is well understood that in most cases he will be unable to pursue that except by splitting his speculative prospects with a lawyer. The functioning of this backward system of dealing with industrial accidents in interstate commerce burdens it with perhaps two dollars of judgment for every dollar that actually reaches those who have been damaged, and it leaves the burden
of many injuries to be borne by them utterly uncompensated. Such being the major burden under which the workmen and the industry must function, I see no reason to believe that Congress could not have intended the relatively minor additional burden to interstate commerce from loading the dice a little in favor of the workingman in the matter of venue. * * *” [315 U. S. 698, 62 S. Ct. 832.]
All of the reasons therein stated and the reasons assigned for refusal of the courts to dismiss such an action brought in the federal courts prior to the 1948 revision (see cases cited above) and for refusing to allow a state court to enjoin a resident plaintiff from prosecuting such an action in a federal or state court outside of the state of his residence (see Miles v. Illinois C. R. Co., supra; Baltimore & O. R. Co. v. Kepner, 314 U. S. 44, 62 S. Ct. 6, 86 L. Ed. 28, 136 A. L. R. 1222, together with the A. L. R. notes to these cases) are still valid reasons why this state should not now adopt such a policy of dismissing such cases under the forum non conveniens doctrine in the absence of express statutory provision authorizing that policy.
Another item which justified Congress in slightly loading the dice in favor of the injured employee, in this antiquated system of giving such employee a law suit instead of compensation, is the inherent advantages of the railroad in discovering and presenting to the court and jury all of the evidence favorable to its cause. Usually all eye witnesses to the accident, other than the injured employee, are other railroad employees whose jobs might depend on whether by their testimony they exonerated themselves from negligence in causing the accident, and in cases of fatal accident, the decedent‘s widow is often dependent entirely on this type of adverse witnesses to establish her claim. In non-fatal accidents where there is a question of the extent of the injury suffered the plaintiff is often dependent entirely on the evidence of doctors employed by the railroad. The railroad not only employs the doctors who treat the injured, but have in their employ every type of expert in obtaining evidence, of the workings of all kinds
The railroads also have a decided advantage in always having available from the moment of the accident the best possible legal counsel. They are able to constantly retain the services of the most able legal talent, who by constant practice in this field are able to keep up with the rulings and best tactics used in the trial of such cases. Such legal staffs are always able to try their cases well, present their evidence and arguments in their most favorable light and establish the confidence of the courts in their ability, soundness and integrity. From reading the second disbarment opinions, In re. Evans, et al. supra, such attorney seems to have convinced the court in the first disbarment hearing to believe that an obviously erroneous and void decision was correct and proper.
Under such circumstances unless there is available to the injured employee equally as capable legal services many just claims will be defeated for lack of effective presentation of such claims. The ordinary general legal practitioner with limited practice in this field and limited facilities for discovering and presenting the facts favorable to the injured employee‘s case is not equipped to compete with the railroad in a trial of this kind. Unless sufficient of this kind of business is concentrated in one place to keep a law firm sufficiently busy therewith so that it can keep abreast with all the latest rulings and best devices used in this kind of
No. 7340. Decided September 28, 1950. (222 P. 2d 350.)