Trahan v. Phoenix Ins. Co.

• Decision Date: 29 May 1967
• Docket Number: No. 7135,7135
• Citation: 200 So.2d 118
• Parties: Dave TRAHAN v. The PHOENIX INSURANCE COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 118

200 So.2d 118

Dave TRAHAN v. The PHOENIX INSURANCE COMPANY et al.

No. 7135.

Court of Appeal of Louisiana, First Circuit.

May 29, 1967.

Rehearing Denied June 30, 1967.

Frances E. Mire, Lake Charles, for petitioner.

Robert J. Vandaworker, of Taylor, Porter, Brooks, Fuller & Phillips, Robert W. Smith, of Seale, Smith & Baine, Baton Rouge, for defendants-respondents.

Before LANDRY, ELLIS and BAILES, JJ.

LANDRY, Judge.

This matter is before us on writ of certiorari directed to the Honorable Nineteenth Judicial District Court, East Baton Rouge Parish, Honorable Luther F. Cole, Judge, presiding, to review the propriety of said tribunal's order decreeing a change of venue in the tort action filed by plaintiff-relator, upon application of defendant Southern Farm Bureau Casualty Insurance Company.

The res nova question presented for our consideration is whether a trial court may transfer a cause to another jurisdiction for trial for the sole purpose of serving the convenience of the court, litigants or witnesses, under the common law doctrine of 'forum non conveniens.' We find that in exercising such power, our brother below fell into error.

Relator, Dave Trahan (Trahan), domiciled in Calcasieu Parish, Louisiana, instituted this ex delicto action in East Baton Rouge Parish to recover damages on behalf of himself and his minor son, Stanford Michael Trahan, for personal injuries sustained by the son in an automobile accident which occurred in Beauregard Parish, Louisiana, December 31, 1965.

At the time of the accident relator's son was a guest passenger in an automobile driven by one Richard Busse, a resident of either West Baton Rouge or Pointe Coupee Parish. The Busse vehicle was insured by defendant Southern Farm Bureau Casualty Insurance Company (Southern Farm); it collided with a truck operated by Wade Cooley, a resident of Beauregard Parish, the insured of defendant The Phoenix Insurance Company (Phoenix). At the time of the accident young Trahan was a resident of East Baton Rouge Parish attending Louisiana State University. Southern Farm and Phoenix, the only defendants herein, are both foreign insurers.

Phoenix resisted relator's demands contending its assured was free of fault and alternatively pleading the doctrines of sudden emergency and unavoidable accident.

Southern Farm excepted to the venue and requested that under the common law doctrine of 'forum non conveniens', the cause be transferred to Beauregard Parish for trial on the merits. After trial of respondent's exception, our brother below ordered this matter removed to the Thirtieth Judicial District Court, Beauregard Parish, hence relator's application to and this court's granting of writs to review the trial court's action in this regard.

As evidenced by the grounds specified in its aforesaid exception, and the argument contained in its brief responding to this writ, Southern Farm appears to base its claim to a change of venue herein on the ground plaintiff's petition fails to allege anything 'which gives the Nineteenth Judicial District Court any interest whatever in this case, and therefore the doctrine of 'forum non conveniens should be invoked.'

The rationale of the rule of 'forum non conveniens' is set forth in Article 5 of respondent's exception which we quote in full as follows:

'5.

The rule of 'forum non conveniens' is an equitable rule based upon the proposition that a court may, in its discretion, decline to exercise jurisdiction over a transitory cause of action when it appears that there is an imposition upon its jurisdiction even though jurisdiction or venue is authorized by the letter of a venue statute, code article or a judicial decision interpreting same.'

In his reasons for judgment appearing in the record, the trial court noted: (1) plaintiff's petition shows that five different physicians were involved in the treatment of plaintiff's son, some of whom are presumably residents of Texas and some who appear to be residents of Calcasieu Parish, Louisina; (2) counsel for plaintiff is from Lake Charles, Calcasieu Parish; (3) counsel for Phoenix is from DeRidder, Beauregard Parish, Louisiana; (4) most of the witnesses may be presumed to come from the vicinity of the site of the accident, Beauregard Parish, and (5) another action arising out of the same accident is presently pending in Beauregard Parish.

Our colleague below correctly recognized that pursuant to the provisions of LSA-R.S. 22:655 and LSA-C.C.P. Article 42(7), and the jurisprudence established in Grand v. American General Insurance Company, et al., 241 La. 733, 131 So.2d 46, relator could have properly brought this action in either Beauregard or East Baton Rouge Parish. Nevertheless, our brother of the lower court invoked the common law doctrine of 'forum non conveniens' which recognizes the inherent power of a court, in the exercise of its sound discretion, to decline jurisdiction where it is reasonably convinced the case may be fairly tried in a more convenient jurisdiction.

Applying said principle, the court concluded that in the instant case both the convenience of the court and litigants would be best served by transferring this cause to Beauregard Parish for trial inasmuch as the already crowded docket of the Nineteenth Judicial District Court would thus be relieved and the convenience of the litigants and witnesses best served by materially reducing travel and attendant time and expense incident to trial.

In so concluding our brother...