Atchison, T. & S. F. Ry. Co. v. District Court of Creek County
| Decision Date | 03 April 1956 |
| Docket Number | No. 37180,37180 |
| Citation | 298 P.2d 427,1956 OK 120 |
| Parties | The ATCHISON, TOPEKA and SANTA FE RAILWAY COMPANY, Petitioner, v. DISTRICT COURT OF CREEK COUNTY, Oklahoma, and Honorable Kenneth Hughes, the Judge thereof, Respondents. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
An action against a foreign railway company for death of employee in railroad accident in New Mexico should be dismissed under doctrine of forum non conveniens where deceased, surviving widow and children of deceased, and all witnesses resided in New Mexico, and only reason why action should be tried in Oklahoma was that plaintiff administrator, who was one of attorneys prosecuting the action, resided in Oklahoma.
Original proceeding by Atchison, Topeka and Santa Fe Railway Company to obtain writ of mandamus directed toward District Court of Creek County, Oklahoma. Writ granted.
Rainey, Flynn, Green & Anderson, Oklahoma City, and Charles E. Daniel, Drumright, for petitioner.
Pat Malloy, Tulsa, and Charles Alan Wright, Austin, Tex., of counsel, for respondents.
This is an original proceeding in this court by The Atchison, Topeka and Santa Fe Railway Company, as petitioner, to prohibit the District Court of Creek County, Oklahoma, and Kenneth Hughes, as Judge of said court, from proceeding in the case of Moore, administrator, v. Atchison, Topeka and Santa Fe Railway Company, No. 29933 in said court on the ground that said court is an inappropriate and inconvenient forum for the trial of the case.
On July 5, 1955, Vernon F. Adair was killed in a train wreck which occurred near Cardinnias, New Mexico. At the time of his death, Adair was a resident of Clovis, New Mexico, and was survived by his wife and seven minor children, all of whom live in Clovis, New Mexico. On July 18, 1955, just thirteen days later, Mr. Joe Moore, an attorney in Creek County, Oklahoma, was appointed administrator of the estate of Vernon F. Adair, deceased, by the County Court of Creek County, Oklahoma. On the same day the above mentioned action was instituted by Mr. Moore as such administrator in the District Court of Creek County, Oklahoma. The attorneys of record for the plaintiff in that case, in addition to Mr. Moore himself, were Mr. William H. De Parcq, of Minneapolis, Minnesota, and Mr. Pat Malloy, of Tulsa, Oklahoma. In addition, Mr. Charles Allan Wright of Austin, Texas, has apparently become subsequently associated as counsel for plaintiff.
After the filing of the action in district court, defendant railway company filed its motion to dismiss the action upon the principle of forum non conveniens. The district court overruled such motion and this proceeding was thereafter instituted.
The action which petitioner seeks to have dismissed is a wrongful death action brought by the plaintiff administrator for the benefit of the surviving widow and children of the deceased, Vernon F. Adair, under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. With the possible exception of the factor of the plaintiff administrator's residence within this state, the case is a prime example of the type of case to which the doctrine of forum non conveniens should be applied. The decedent was a resident of the State of New Mexico. The wreck in which he lost his life occurred in the State of New Mexico. The surviving widow and children for whose benefit the action is brought reside in New Mexico. Every known witness to possibly be called upon to testify in the case resides in New Mexico. The defendant railway company is a Kansas Corporation, but has lines in New Mexico and is amenable to service of process in both state and federal courts in that state. The cost of defending the action in Oklahoma would exceed the cost of defending the same in New Mexico by an estimated $5,000. The circumstances of the case would seem to be even more compelling toward the application of the doctrine of forum non conveniens than were those involved in the case of Murphey v. St. Louis-San Francisco Railway Company which this court ordered dismissed in St. Louis-San Francisco Ry. Co. v. Superior Court, Creek County, Okl., 290 P.2d 118.
The plaintiff in the action is unable to suggest any valid reason why the action should be tried in this jurisdiction, but insists that he, as the administrator, is the real party in interest and is a resident of this state and therefore has an absolute right to bring the action in this jurisdiction and that the same cannot be dismissed. We do not agree.
Plaintiff cites as his authority for such contention the line of cases announcing the rule followed by the federal courts in determining diversity of citizenship for the purpose of ascertaining the jurisdiction of such courts, such as Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233, and Memphis St. R. Co. v. Moore, 243 U.S. 299, 37 S.Ct. 273, 61 L.Ed. 733. Such cases deal solely with a strict determination of jurisdiction of the court and have nothing to do with the determination of the appropriateness of the forum selected. We are not here concerned with a question of jurisdiction or venue. It is conceded that both jurisdiction and venue exist. The question of forum non conveniens does not even arise unless the court has jurisdiction and venue. For a complete discussion of this point see St. Louis-San Francisco Ry. Co. v. Superior Court, Creek County, Okl., 276 P.2d 773. For a discussion and review of the authorities dealing with the question of determining the real party in interest for purposes other than a strict determination of jurisdiction based on diversity of citizenship see Fenton v. Sinclair Refining Co., Okl., 283 P.2d 799, wherein we held that the widow and children of the deceased whose death gave rise to the cause of action were the real parties in interest rather than the non-resident administrator of decedent's estate, for the purpose of determining the applicable statute of limitations.
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