Anderson v. Del., L. & W. R. Co.
Decision Date | 04 March 1940 |
Citation | 18 N.J.Misc. 153,11 A.2d 607 |
Parties | ANDERSON et al. v. DELAWARE, L. & W. R. CO. |
Court | New Jersey Circuit Court |
Action by Delia Anderson and others against the Delaware, Lackawanna & Western Railroad Company to recover for the death of plaintiffs' son who was killed by alleged negligence of defendant in operation of its railroad. On defendant's motion to dismiss the action.
Motion denied.
Ward & McGinnis, of Paterson, for plaintiffs.
John A. Laird, of Newark, for defendant.
This action is brought to recover damages for injuries resulting in death. Plaintiffs are the parents of decedent, who was killed by the alleged negligence of the defendant in the operation of its railroad. The action is prosecuted by the parents in compliance with the statutes of Pennsylvania creating the action for death. 12 P. S.Pa. §§ 1601, 1602, et seq.
Plaintiffs are residents of Pennsylvania. Defendant is a corporation of Pennsylvania. The alleged cause of action arose in Pennsylvania. Service of process in the action was made upon the defendant in this state under the provisions of our statute, N.J.S. A. 2:26-44.
The case is before the court on motion by the defendant to dismiss the action upon the ground that this court in its discretion may decline jurisdiction of the matter because the parties reside in Pennsylvania, the cause of action arose in Pennsylvania, and under the circumstances existing as to the locus in quo, the matter should be heard in the courts of Pennsylvania. In support of this argument, the defendant asserts substantial reasons as follows:
The question is whether the law courts of this state may decline jurisdiction of a transitory cause of action in tort between non-residents (the defendant being considered such because it is a foreign corporation) which arose under the laws of a sister state, where this court has acquired jurisdiction of the person and subject matter.
It is of course conceded that our courts have jurisdiction to entertain such actions. Hale v. Lawrence, 21 N.J.L. 714, 47 Am. Dec. 190 (1848, Nevius, J.); Ackerson v. Erie Railway Co., 31 N.J.L. 309 (Sup.Ct. 1865, Beasley, C J.); Metcufskie v. P. & R. Railway Co., 97 N.J.L. 100, 116 A. 170 (Sup. Ct. 1922, Black, J.); Kopenhafer v. Pennsylvania R. R., K)6 N.J.L. 530, 148 A. 629 (1930, Hetfield, J.); Kryn et al. v. Kahn, 54 A. 870 (Sup.Ct.N.J.1903, Hendrickson, J.); Martin v. Lehigh Valley R. R., 114 N.J.L. 243, 176 A. 665 (1935, Perskie, J.); cf. Hill v. Nelson, 70 N.J.L. 376, 57 A. 411 (Sup. Ct. 1922 Dixon, J.), involving a local action.
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 ( ), 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 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 the 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 principle 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 states. Universal Adjustment Co. 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. Wertheim v. Clerque, 53 App.Div. 122, 65 N.Y.S. 750; Davis v. Julius Kessler & Co., 118 Misc. 292, 194 N.Y.S. 9.
The doctrine of forum non conveniens has received recognition in some states and disapproval in others, as appears from the note in 32 A.L.R. 1. In New York particularly, its courts have long applied the doctrine because the statute, Code Civ.Proc. § 1780, conferring jurisdiction upon its courts did not authorize actions between non-residents for personal torts of foreign creation. Robinson v. Ocean Steam Navigation Co., 112 N.Y. 315, 19 N.E. 625, 2 L.R.A. 636 (1889). The facts in that case are somewhat similar to those in the case at bar. Since 1913, although foreign corporations may be sued in certain cases (Sec. 47, General Corporation Law, Code Civ. Proc. § 1780, as amended, now Consol.Laws N.Y. c. 23, § 225), the New York courts have continued to hold they may in their discretion decline jurisdiction in transitory actions involving personal injuries between non-residents when the cause of action arose in a sister state. The constitutionality of such denial was upheld by the Supreme Court of the United States in a matter involving foreign corporations in an action upon a foreign judgment which resulted from a claim for personal injuries obtained in Illinois. Anglo-American Provision Co. v. Davis Provision Co., 191 U.S. 373, 24 S.Ct. 92, 48 L.Ed. 235. The statute of 1913 was likewise applied by the New York Court of Appeals in the case dealing with an action for personal injuries under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., in Murnan v. Wabash R. R., 246 N.Y. 244, 158 N.E. 508, 54 A.L.R. 1522, and again sustained on the same facts by the United States Supreme Court in Douglas v. N. Y., N. H. & H. R. R., 279 U.S. 377, 49 S.Ct. 355, 356, 73 L.Ed. 747. In the latter case, Mr. Justice Holmes stated: ...
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