Paul Ward, Associate Justice.
The questions for decision are: Did the Circuit Court have the discretionary right to refuse to take jurisdiction of a certain cause’of action, and, if so, did it abuse that discretion?
On November 5, 1953 appellant, Clifton Running, filed a complaint in the Circuit Court of Pulasld County, Arkansas against appellee, Southwest Freight Lines, Inc., containing the following material allegations: Appellant is now and at all times mentioned was a resident of Missouri; Appellee has at all times mentioned been a corporation existing under the laws of Missouri with its principal place of business in Kansas City, Kansas, it is authorized to do business in Arkansas, and had appointed a resident agent for Arkansas; On December 27, 1950 appellant was injured in the State of Illinois because of the negligence of appellee’s agent while driving a truck loaded with merchandise, and; As a result of such negligence and injury he was damaged in excess of $150,000.
Service of summons on appellee was had by delivering a copy to the said agent for service in Little Rock, Arkansas.
On November 25, 1953 appellee filed a motion to dismiss the above complaint upon the following grounds: 1. The Court is without jurisdiction of the cause; 2. Appellant, on July 21, 1953, filed a complaint on the same cause of action against the same appellee in the Circuit Court of Jackson County, Missouri, and thereafter, on August 14, 1953, voluntarily dismissed the same. Also the maintenance of this cause of action is contrary to public policy and constitutes a burden on the courts of Arkansas, and; 3. The alleged cause of action is barred by the statute of limitation in Illinois and appellee pleads the same.
On June 2, 1953 the parties stipulated substantially as follows: The facts set forth in the complaint, relative to dates and residences, are correct; This cause of action does not arise out of any business or operation of either appellant or appellee in the State of Arkansas, and; The allegations in the motion to dismiss relative to the suit and non-suit in Missouri are correct.
On June 22, 1956 the trial court considered appellee’s motion to dismiss, presented on the complaint and stipulation, and sustained the same on the ground that acceptance of jurisdiction would constitute a burden on the courts of Arkansas.
For a reversal, appellant bases his argument on three, grounds, viz: I. The lower court had jurisdiction; II. This Court, by its former decisions, has established the rule that jurisdiction will be accepted in this type cause of action, and; III. Even though it be held that the trial court had discretion in the matter, it was an abuse of discretion in this instance to refuse jurisdiction.
I
We agree with appellant that the trial court in this case, had a right to exercise jurisdiction if it had chosen to do so. This fact is not disputed by appellee, and it has been established by the decisions of this court. See, St. Louis & San Francisco Ry. Co. v. Brown, 62 Ark. 254, 35 S. W. 225; St. Louis I. M. & S. R. Co. v. Haist, 71 Ark. 258, 72 S. W. 893; Yockey v. St. Louis-San Francisco Ry. Co., 183 Ark. 601, 37 S. W. 2d 694.
II
We cannot agree, however, that the decisions above cited, or any decisions of this court, have established a rule which binds, or should bind, the courts of this State to accept jurisdiction in this case. A careful examination of our cases disclosed that they do not deal with the exact question presented here. Either there was not the same situation as to location of parties and cause of action as here or the question of jurisdiction was not raised.
In the opinions of many courts and textwriters it is important that courts have some discretion in accepting or rejecting jurisdiction in this kind of case in order to protect themselves and the people from the burden ensuing from imported cases, and in order to avoid hardships on and inconveniences to litigants. The necessity for this discretion has found expression in the doctrine known as forum non conveniens. The California Law Reyiew, Yol. 35 page 388, gives credit to a law review writer for bringing tbe term into American law, “contending that all American Courts had inherent power to decline jurisdiction under the doctrine. ” It is also there stated that: “After this article the use of the term became so general that in 1941 Justice Frankfurter referred to the ‘familiar doctrine of forum non conveniens as a manifestation of a civilized judicial system which is firmly imbedded in our law.’ ”
We recognize that not all courts have adopted the doctrine of forum non conveniens or recognize the discretion to reject jurisdiction where the court had power to exercise it, but we think the doctrine is sound. At least we are unwilling to hold that a court of this State has absolutely no discretion under any circumstances in cases of this nature.
Some of our own decisions indicate, if they do not exactly hold, that our courts can exercise discretion in the matter of accepting or refusing jurisdiction. In the case of Grovey v. Washington National Life Ins. Co., 196 Ark. 697, 119 S. W. 2d 503, the court quoted with approval from R. C. L. the following: “ ‘But in actions between nonresidents based on a cause of action arising outside the state, the courts are not obliged to entertain jurisdiction. They may and usually do so on principles of comity, but not as a matter of strict right. In other words, it lies within the discretion of the courts whether or not they will entertain such a transitory action.’ ” Likewise in Altshuler v. Altshuler, 222 Ark. 271, 258 S. W. 2d 545, this court in referring to the doctrine of forum non conveniens as it is discussed in Am. Jur., said:
“Without quoting, it suffices to say this authority recognizes that the matter of forum, in instances like the one presented here, involved ‘the exercise of judicial discretion’ on the part of the trial judge, . . .”
Many other jurisdictions uphold the discretionary powers of court to accept or reject jurisdiction in certain cases, and many of them recognize and apply the doctrine of forum non conveniens. See: Driscoll v. Portsmouth K. & Y. St. Ry., 71 N. H. 619, 51 A. 898; Foss v. Richards, 126 Me. 419, 139 A. 313; Stewart v. Litchenberg, 148 La. 195, 86 So. 734; St. Louis-San Francisco Ry. Co. v. Superior Court, Okla., 290 P. 2d 118; Price v. Atchison, T. & S. F. Ry. Co., 42 Cal. 2d 577, 268 P. 2d 457, and; Johnson v. Chicago, Burlington and Quincy Railroad Co., 243 Minn. 58, 66 N. W. 2d 763.
Ill
Having concluded that the trial court could exercise discretion in the matter of assuming or rejecting jurisdiction under the facts and circumstances of this case, then the question presented is: Did the trial court abuse its discretion in refusing jurisdiction?
The answer to the above question must be considered in the light of the fact that neither side introduced any evidence. Appellee takes the position that the facts shown in the pleadings and the stipulation are ample to sustain the trial court’s action (or discretion) in refusing to assume jurisdiction, but we do not agree.
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Paul Ward, Associate Justice.
The questions for decision are: Did the Circuit Court have the discretionary right to refuse to take jurisdiction of a certain cause’of action, and, if so, did it abuse that discretion?
On November 5, 1953 appellant, Clifton Running, filed a complaint in the Circuit Court of Pulasld County, Arkansas against appellee, Southwest Freight Lines, Inc., containing the following material allegations: Appellant is now and at all times mentioned was a resident of Missouri; Appellee has at all times mentioned been a corporation existing under the laws of Missouri with its principal place of business in Kansas City, Kansas, it is authorized to do business in Arkansas, and had appointed a resident agent for Arkansas; On December 27, 1950 appellant was injured in the State of Illinois because of the negligence of appellee’s agent while driving a truck loaded with merchandise, and; As a result of such negligence and injury he was damaged in excess of $150,000.
Service of summons on appellee was had by delivering a copy to the said agent for service in Little Rock, Arkansas.
On November 25, 1953 appellee filed a motion to dismiss the above complaint upon the following grounds: 1. The Court is without jurisdiction of the cause; 2. Appellant, on July 21, 1953, filed a complaint on the same cause of action against the same appellee in the Circuit Court of Jackson County, Missouri, and thereafter, on August 14, 1953, voluntarily dismissed the same. Also the maintenance of this cause of action is contrary to public policy and constitutes a burden on the courts of Arkansas, and; 3. The alleged cause of action is barred by the statute of limitation in Illinois and appellee pleads the same.
On June 2, 1953 the parties stipulated substantially as follows: The facts set forth in the complaint, relative to dates and residences, are correct; This cause of action does not arise out of any business or operation of either appellant or appellee in the State of Arkansas, and; The allegations in the motion to dismiss relative to the suit and non-suit in Missouri are correct.
On June 22, 1956 the trial court considered appellee’s motion to dismiss, presented on the complaint and stipulation, and sustained the same on the ground that acceptance of jurisdiction would constitute a burden on the courts of Arkansas.
For a reversal, appellant bases his argument on three, grounds, viz: I. The lower court had jurisdiction; II. This Court, by its former decisions, has established the rule that jurisdiction will be accepted in this type cause of action, and; III. Even though it be held that the trial court had discretion in the matter, it was an abuse of discretion in this instance to refuse jurisdiction.
I
We agree with appellant that the trial court in this case, had a right to exercise jurisdiction if it had chosen to do so. This fact is not disputed by appellee, and it has been established by the decisions of this court. See, St. Louis & San Francisco Ry. Co. v. Brown, 62 Ark. 254, 35 S. W. 225; St. Louis I. M. & S. R. Co. v. Haist, 71 Ark. 258, 72 S. W. 893; Yockey v. St. Louis-San Francisco Ry. Co., 183 Ark. 601, 37 S. W. 2d 694.
II
We cannot agree, however, that the decisions above cited, or any decisions of this court, have established a rule which binds, or should bind, the courts of this State to accept jurisdiction in this case. A careful examination of our cases disclosed that they do not deal with the exact question presented here. Either there was not the same situation as to location of parties and cause of action as here or the question of jurisdiction was not raised.
In the opinions of many courts and textwriters it is important that courts have some discretion in accepting or rejecting jurisdiction in this kind of case in order to protect themselves and the people from the burden ensuing from imported cases, and in order to avoid hardships on and inconveniences to litigants. The necessity for this discretion has found expression in the doctrine known as forum non conveniens. The California Law Reyiew, Yol. 35 page 388, gives credit to a law review writer for bringing tbe term into American law, “contending that all American Courts had inherent power to decline jurisdiction under the doctrine. ” It is also there stated that: “After this article the use of the term became so general that in 1941 Justice Frankfurter referred to the ‘familiar doctrine of forum non conveniens as a manifestation of a civilized judicial system which is firmly imbedded in our law.’ ”
We recognize that not all courts have adopted the doctrine of forum non conveniens or recognize the discretion to reject jurisdiction where the court had power to exercise it, but we think the doctrine is sound. At least we are unwilling to hold that a court of this State has absolutely no discretion under any circumstances in cases of this nature.
Some of our own decisions indicate, if they do not exactly hold, that our courts can exercise discretion in the matter of accepting or refusing jurisdiction. In the case of Grovey v. Washington National Life Ins. Co., 196 Ark. 697, 119 S. W. 2d 503, the court quoted with approval from R. C. L. the following: “ ‘But in actions between nonresidents based on a cause of action arising outside the state, the courts are not obliged to entertain jurisdiction. They may and usually do so on principles of comity, but not as a matter of strict right. In other words, it lies within the discretion of the courts whether or not they will entertain such a transitory action.’ ” Likewise in Altshuler v. Altshuler, 222 Ark. 271, 258 S. W. 2d 545, this court in referring to the doctrine of forum non conveniens as it is discussed in Am. Jur., said:
“Without quoting, it suffices to say this authority recognizes that the matter of forum, in instances like the one presented here, involved ‘the exercise of judicial discretion’ on the part of the trial judge, . . .”
Many other jurisdictions uphold the discretionary powers of court to accept or reject jurisdiction in certain cases, and many of them recognize and apply the doctrine of forum non conveniens. See: Driscoll v. Portsmouth K. & Y. St. Ry., 71 N. H. 619, 51 A. 898; Foss v. Richards, 126 Me. 419, 139 A. 313; Stewart v. Litchenberg, 148 La. 195, 86 So. 734; St. Louis-San Francisco Ry. Co. v. Superior Court, Okla., 290 P. 2d 118; Price v. Atchison, T. & S. F. Ry. Co., 42 Cal. 2d 577, 268 P. 2d 457, and; Johnson v. Chicago, Burlington and Quincy Railroad Co., 243 Minn. 58, 66 N. W. 2d 763.
Ill
Having concluded that the trial court could exercise discretion in the matter of assuming or rejecting jurisdiction under the facts and circumstances of this case, then the question presented is: Did the trial court abuse its discretion in refusing jurisdiction?
The answer to the above question must be considered in the light of the fact that neither side introduced any evidence. Appellee takes the position that the facts shown in the pleadings and the stipulation are ample to sustain the trial court’s action (or discretion) in refusing to assume jurisdiction, but we do not agree. The facts referred to may be listed as follows: (a) Appellant is a resident of Missouri; (b) Appellee is domiciled in Missouri and is authorized to do business in Arkansas; (c) The cause of action arose in Illinois; (d) Appellant filed and dismissed a suit on this same cause of action in Missouri, and; (e) The statute of limitation has run on the cause of action in Illinois. Without much question facts (d) and (e) can be eliminated. The former could have no possible bearing on the matter, and the latter is equally favorable to appellant. See: Price v. Atchison, supra. Thus it is seen that the only facts presented to the trial court were those which are necessary to raise the question being here considered, and none on which to base choice or discretion. Consequently, there is no way or means by which this court can intelligently determine whether or not the trial court abused its discretion.
Our examination of the cases applying the doctrine of forum non conveniens reveals that several factors have a bearing on the question of accepting or rejecting jurisdiction, such as; the inconveniences that might accrue to either side in the matter of obtaining witnesses or documents. "Whether considered included in the said doctrine or not, we see no reason why the trial court should not properly consider other facts and factors of a different nature, such as the condition of the trial docket, the probable expense of the trial, and any other facts or circumstances affecting a just determination.
Since the record in this case contains no testimony upon which the court could base its discretion, and, consequently no testimony on which we can say whether the trial court abused its discretion, it becomes necessary to determine which party had the duty of producing such testimony. It is our conclusion, after careful consideration, that this burden rested on appellee. In the ordinary motion to dismiss, where testimony is required, the burden is always on the moving party to produce evidence to sustain the allegations of his motion, and we know of no good reason why the same rule should not apply here.
Since the questions involved on this appeal are somewhat novel and there has been announced no rule to guide trial courts in such matters, we think justice would be served by reversing this cause with directions to proceed further on appellee’s motion in accordance with this opinion, and it is so ordered.
Justice McFaddin concurs. Justice Millwee would affirm.