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

11 A.2d 607

18 N.J.Misc. 153

ANDERSON et al.

v. DELAWARE, L. & W. R. CO.

Circuit Court of New Jersey, Passaic County.

March 4, 1940.

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.

WOLBER, Circuit Court Judge.

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:

"As appears from the face of the proceedings, the plaintiffs in this action are residents of Old Forge, in the State of Pennsylvania, while the defendant is a corporation of the State of Pennsylvania, and the accident, which is the foundation of the cause of action, occurred in the Borough of Taylor in that state.

"The defendant, The Delaware, Lackawanna and Western Railroad Company, maintains its principal office in the State of Pennsylvania at the City of Scranton, which is within five miles of Old Forge and of the Borough of Taylor, and service upon it may be readily effected at Scranton and elsewhere throughout the state.

"Practically all the witnesses on the side both of the plaintiff and of the defendant reside in the State of Pennsylvania and for the most part in or near the City of Scranton, and the obvious convenience of the parties would be best served by the trial of this cause of action before the courts of the State of Pennsylvania, and under the facts of this case, this court should exercise its discretion and refuse to take jurisdiction over this litigation for the reason that neither the State of New Jersey nor any of its citizens have any interest therein, and no good reason exists for burdening the taxpayers of this state with the expense of this litigation or in consuming the time of this court in the trial of the same, thereby necessarily delaying the trial of other actions properly brought in this court by citizens of this state. In the instant case, if a trial is to be had in this state, it will be necessary for the defendant to bring not only four or five outside witnesses to this state from the neighborhood of Scranton, Pennsylvania, but also to take away from their employment over an extended period of time and to temporarily replace members of the train crew involved in this accident, as well as surveyors, civil engineers and other expert witnesses, all to the defendant's great inconvenience, expense and damage.

"It further appears from the complaint that plaintiffs' decedent was killed while crossing the right-of-way of the defendant company upon a certain pathway over which it is alleged 'workmen or employees and pedestrians were at all times permitted, allowed and invited * * * to pass frequently over,' and that the accident was due to the negligence of the servants of the defendant company; and that as is claimed, the defendant owed the plaintiff the duty of exercising care for his safety. It is obvious that these allegations may require a finding as to the law of Pennsylvania upon this subject, and as an added reason for referring this litigation to the forum in which the cause of action arose, your affiant alleges that a trial of this case in the State of New Jersey might require that a jury determine from the evidence of expert witnesses what the law of the State of Pennsylvania actually is on this subject, whereas a trial before the courts of Pennsylvania would require that these legal questions be determined by a court undoubtedly familiar with the Pennsylvania law applicable to the situation."

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 (resident v. foreign corporation for out-of-state tort), 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 "Place of Trial. Interstate Application of Intrastate Methods of Adjustment," 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: "Construed as it has been and we believe will be construed the statute applies to citizens of New York as well as to others and puts them on the same footing. There is no discrimination between citizens as such, and none between nonresidents with regard to these foreign causes of action. A distinction of privileges according to residence may be based upon rational considerations and has been upheld by this Court, emphasizing...