Mooney v. Denver & R. G. W. R.

221 P.2d 628, 118 Utah 307, 1950 Utah LEXIS 179

• Court: Utah Supreme Court
• Decided: August 7, 1950
• Docket: 7373
• Status: Published

Opinions

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 and operates an interstate railway in the states of Utah and Colorado. While a major portion of the business of the defendant carrier may be carried on in the State of Colorado a large and substantial amount is transacted in this state. There are in excess of 298 miles of main line trackage belonging to the defendant in this state and it is one of the two principal east-west continental lines running between Salt Lake City, Utah, and Denver, Colorado.

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 trial of cases involving local residents and local issues of pressing importance; that the trial of this and similar cases between non-residents of Utah is increasing the administrative costs of the local courts and imposing additional burdens upon the citizens of this state, both financial and in the performance of their civic duties as jurors; that the distance between Denver, Colorado, and Salt Lake City, Utah, is 570 miles and that the cost to the defendant to litigate the case in this jurisdiction would amount to approximately $1,500.00.

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 against a foreign corporation on a cause of action arising outside this state.

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, 45 U. S. C. A. § 56.

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 Section 104 — 4—5, U. C. A. 1943. That section is as follows:

“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 right or power of a district court of general jurisdiction to dismiss this action upon the grounds stated, we desire to quote relevant constitutional provisions stated, we desire to quote relevant constitutional provisions and statutes of this state dealing with change of venue. We quote from the State Constitution to establish the policy that courts in this state must be open to all persons, and, we quote from the Code to show that within this state the legislature considered that courts should be clothed with discretionary power to transfer causes to other districts within the state for the convenience of witnesses or parties or when the ends of justice would be promoted.

Article I, Section 11, of the Constitution of the State of Utah, provides as follows:

“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.”

Section 104 — 4—9, U. C. A. 1943, insofar as is material, is as follows:

“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 statutes make it mandatory upon the courts of this state to exercise jurisdiction even though in the first instance the cause of action was properly instituted. We shall refer to pertinent United States Supreme Court decisions in chronological order.

In the case of Chambers v. Baltimore & Ohio R. R. Company, 207 U. S. 142, 28 S. Ct. 34, 35, 52 L. Ed. 143, decided November 18, 1907, the Supreme Court of the United States, in dealing with a cause of action running to a nonresident, 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, decided January, 1912, which involved the construction of the Federal Employers’ Liability Act, the Supreme Court of the United States discussed the right of Congress to enlarge or regulate the jurisdiction of state courts. In that case, Mr. Justice VAN DEVANTER, speaking for the court, made the following observations:

“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. 642, 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, decided May 13, 1929, which involved the constitutionality of New York state statutes relating to actions against foreign corporations by non-residents, expressly stated that the F. E. L. A. did not require state courts to entertain suits. Mr. Justice HOLMES ended the opinion with the following observation:

“As to the grant of jurisdiction in the Employers’ Inability Act that statute does not purport to require State Courts to entertain suits arising under it, but only to empotver them to do so, so far as the authority of the United States is concerned. 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, decided April 30, 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. 365, 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. Keener, 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 case, the proceeding originally was brought by a railroad company to enjoin the plaintiff from prosecuting his suit in the United States District Court for the Eastern District of New York. The issue was whether or not a state court could enjoin a resident from pursuing his right of action in a foreign federal jurisdiction. That suit brought into focus interferences, direct and indirect, between federal and state courts. The Supreme Court of the United States concluded that the resident of the state of Ohio was free to pursue his remedies in the foreign federal jurisdiction without interference by the state court. The case involved maintaining the balance between federal and state jurisdiction, and the Supreme Court held that the state court could not by injunction deny the party his choice of a federal forum. Mr. Justice REED, speaking for the court, said:

“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, 688 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 bq 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.”