Adkins v. Chicago, R. I. & P. R. Co.

• Decision Date: 04 June 1973
• Docket Number: No. 44876,44876
• Parties: Leva ADKINS, Admr., Appellee, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY et al., Appellants.
• Court: Illinois Supreme Court

Page 729

301 N.E.2d 729

54 Ill.2d 511

Leva ADKINS, Admr., Appellee, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY et al., Appellants.

No. 44876.

Supreme Court of Illinois.

June 4, 1973.

Rehearing Denied Sept. 27, 1973.

Eugene R. Johnson, Peoria, B. A. Webster, Des Moines, Iowa, and William M. Walker, Rock Island (Westervelt, Johnson, Nicoll & Keller, Peoria, Gamble, Riepe, Martin & Webster, Des Moines, Iowa, and Coryn, Patton & Walker, Rock Island, all of counsel), for appellants. Philo. Maki, Ravitz, Cockrel, Robb Karfonta & Spearman, Detroit, Mich., Lawyer, Lawyer & Ray, Des Moines, Iowa, and Klockau, McCarthy, Schubert, Lousberg & Ellison, Rock Island (Harry M. Philo, Detroit, Mich., Verne Lawyer, Des Moines, Iowa, and Frank G. Schubert, Rock Island, of counsel), for appellee.

SCHAEFER, Justice.

The circuit court of Rock Island County entered judgment upon a jury verdict in the amount of $449,757 in favor of the plaintiff, Leva Adkins, administratrix of the estate of Everett Harmon Adkins, deceased, against the defendants, Chicago, Rock Island and Pacific Railroad Company, W. B. Throckmorton, and R. V. Loftus. The appellate court ordered a remittitur in the amount of $199,757 and affirmed. (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1971), 2 Ill.App.3d 906, 274 N.E.2d 507.) We allowed the defendants' petition for leave to appeal.

The plaintiff's decedent, Everett Harmon Adkins, was killed on October 6, 1966, when the tractor trailer he was driving was struck by the defendant railroad's train at a railroad crossing at Booneville, Iowa. On October 18, 1966, the plaintiff, a resident of Michigan, brought an action in the United States District Court for the Southern District of Iowa. The railroad, a Delaware corporation doing business in Iowa, Illinois and other States, was the sole defendant. Depositions were taken and interrogatories and admissions were filed and answered, and the case was set for trial on September 11, 1967. After certain rulings were made at a pretrial hearing, the plaintiff moved for a continuance, and the case was reset for trial on December 5, 1967. It was not tried, however, because on November 9, 1967, the case was dismissed on the plaintiff's motion.

On January 16, 1968, the plaintiff instituted the present action in the circuit court of Rock Island County, again naming the railroad as the sole defendant. On March 15, 1968, a motion to dismiss on the ground of Forum non conveniens was filed by the railroad. Before the court ruled on the motion, the plaintiff filed an amended complaint on May 14, 1968. The amended complaint added W. B. Throckmorton, chief engineer, and R. V. Loftus, traffic engineer, of the railroad, both of whom were Illinois residents, as defendants. The trial court then denied the motion to dismiss, and thereafter the case proceeded to trial. Both the railroad and the individual defendants raised the issue again in their post-trial motions.

On this appeal the defendants contend that the trial court erred in not dismissing the case on the ground of Forum non conveniens. They also urge that the trial court erred in admitting certain evidence, and in instructing the jury. Because we are satisfied that the motion to dismiss should have been granted, we do not discuss the other alleged errors.

Forum non conveniens is a doctrine that is founded in considerations of fundamental fairness and sensible and effective judicial administration. In the application of these basic considerations a court may decline jurisdiction of a case 'even though it may have proper jurisdiction over all parties and the subject matter involved' (Whitney v. Madden (1948), 400 Ill. 185, 189, 79 N.E.2d 593, 595, cert. denied, 335 U.S. 828, 69 S.Ct. 55, 93 L.Ed. 382), whenever it appears that there is another forum that can better 'serve the convenience of the parties and the ends of justice.' (Lonergan v. Crucible Steel Co. of America (1967), 37 Ill.2d 599, 606, 229 N.E.2d 536, 539.) Factors to be considered in disposing of a motion to dismiss Forum non conveniens include the relative capacities of the two courts to provide a fair trial, the relative inconvenience to witnesses and parties, and the burden placed upon the taxpayers and residents of the jurisdiction to which the cause of action is transported. The railroad was the sole defendant in the complaint filed in the circuit court of Rock Island County. The only connection Illinois had with the lawsuit was that the railroad does business here. This fact is not significant in determining a motion to dismiss on the ground of Forum non conveniens, because such a motion assumes that both courts can obtain jurisdiction over the defendant. The plaintiff is a resident of Michigan, as was the deceased before his death. The collision with which the action is concerned took place in Iowa, over 200 miles from Rock Island, Illinois. This means that a jury in Iowa could view the scene of the accident, but an Illinois jury could not. It also means that the rights of the parties are to be determined by the law of Iowa, and certainly an Iowa judge is in a superior position to make that determination. A fair trial means a prompt trial, and the Annual Report of the Administrative Office of the Illinois Courts shows that in 1968, when the motion to dismiss was made, the average delay between the date of filing and the date of verdict in civil cases in the 14th Judicial Circuit, which includes Rock Island County, was 18.5 months.

All of the factors normally considered thus point to the conclusion that Rock Island County is not an appropriate forum for the trial of this case. That conclusion is reinforced by the unusual circumstances of this case. The case was ready for trial in Iowa more than a year and a half before it was tried in Illinois. The case in Iowa was voluntarily dismissed by the plaintiff, who was dissatisfied with pretrial rulings of the Iowa judge concerning the admissibility of certain evidence. Some of those rulings involve questions that have been raised in this court. What we have, then, is in practical result an appeal to the Illinois courts from the rulings of the Iowa judge. This is unseemly business, and in our opinion the denial of the motion to dismiss, which was accompanied by a waiver of the statute of limitations, was an abuse of discretion.

Our conclusion is not altered by the circumstance that the two individual defendants, one of whom was a resident of Cook County, Illinois, and the other a resident of Will County, Illinois, were added as defendants. They were not added until four months after the present action in Illinois was commenced, and more than a year and a half after the plaintiff first sued the railroad in Iowa. For many years our statutes have expressed the policy of this State against the joinder of defendants 'without probable cause and not in good faith for the purpose of obtaining a judgment against him but solely for the purpose of fixing venue in that county.' (See, Ill.Rev.Stat.1971, ch. 110, pars. 5, 9; see also, Hurd's Stat.1908, ch. 110, par. 6.) Interpreting this language, the appellate court stated in Green v. Unity Container Corp. (1955), 7 Ill.App.2d 215, 221, 129 N.E.2d 458, 462: "Good faith' is hardly capable of an exact definition; it consists of an honest intention to abstain from taking any unconscientious advantage of another, even through forms and technicalities of the law. 'Probable cause' is a reasonable belief that the claim on which the suit is brought is valid.'

It seems apparent that the individual defendants were joined in order to make the Illinois action look different from the Iowa action, and thereby provide some sort of basis upon which the denial of a motion to dismiss could be predicated. While this situation is not governed by the language of our venue statues, it is clear that the policy expressed in those statutes applies to the present situation.

Whether persons occupying the positions of the individual defendants in this case are liable in tort to a plaintiff who suffers injuries as the result of a defective grade crossing is not clear as a matter of substantive law. We have found no Iowa decisions indicating liability, and the defendants in their reply brief have set forth the decision of the United States District Court for the Southern District of Iowa, in White v. Chicago, Rock Island and Pacific Railroad Co. (Civil No. 5-121-D, S. D. Iowa, March 3, 1972), holding, in a similar situation, that individual employees of a railroad are not liable. We are not convinced that the individual defendants were joined with probable cause and in good faith for the purpose of obtaining a judgment against them.

The judgments of the circuit and appellate courts are reversed, and the cause is remanded to the circuit court of Rock Island County, with directions to grant the motion to dismiss.

Reversed and remanded, with directions.

GOLDENHERSH, Justice (dissenting):

I dissent. I agree with the circuit and appellate courts that upon this record the doctrine of Forum non conveniens is clearly inapplicable and assuming Arguendo, that there was an issue here of Forum non conveniens, the majority have disregarded the rule that the trial court's decision will not be disturbed unless the record shows an abuse of discretion.

Prior to discussing the legal issues it is essential to correct a factual error in the majority opinion. The majority states: 'The collision with which the action is concerned took place in Iowa, over 200 miles from Rock Island, Illinois. This means that a jury in Iowa could view the scene of the accident, but an Illinois jury could not.' The undisputed fact is that the highway and railroad crossing have been completely rebuilt and it will not be possible for a jury to view the scene; nor does the record reflect either that such is the custom in Iowa, or that it was possible to do so, or that such was the intent, when the case was...