Besse v. Missouri Pacific R. Co., 68158

• Decision Date: 16 December 1986
• Docket Number: No. 68158,68158
• Citation: 721 S.W.2d 740
• Parties: Jimmy Paul BESSE, Plaintiff-Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 740

721 S.W.2d 740

Jimmy Paul BESSE, Plaintiff-Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellant.

No. 68158.

Supreme Court of Missouri,

En Banc.

Dec. 16, 1986.

Michael D. O'Keefe, Mitchell F. Stevens, Robert D. Tucker, St. Louis, for defendant-appellant.

C. Marshall Friedman, Kenneth E. Rudd, Newton G. McCoy, Thomas P. McDermott, Chris G. Echsner, C. Marshall Friedman, P.C., St. Louis, for plaintiff-respondent.

BLACKMAR, Judge.

The plaintiff, a railroad employee working out of Wichita, Kansas, recovered a judgment of $1,687,500.00 under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 (1982), against his employing railroad in the Circuit Court of the City of St. Louis. The defendant appealed, contending (1) that the trial court should have dismissed the suit under the doctrine of forum non conveniens, and (2) that it is entitled to a new trial because the trial court did not give a "present value" instruction, as now required by St. Louis Southwestern Ry. Co. v. Dickerson, 470 U.S. 409, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985). The Court of Appeals, Eastern District, affirmed, but transferred the case here because of the instruction point. We consider both arguments as on original appeal and likewise affirm, concluding: (1) that the trial court did not abuse its discretion under the special facts of this case in declining to apply the doctrine of forum non conveniens, because the suit was filed at the location of the home office of the defendant and the forum is not shown to be manifestly inconvenient, and (2) that the defendant was not entitled to a present-value instruction because none was requested.

I.

The doctrine of forum non conveniens exists in Missouri and may be applied in FELA cases such as this one. State ex rel. Chicago, Rock Island & Pacific Railroad Co. v. Riederer, 454 S.W.2d 36 (Mo. banc 1970).

The Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 (1982), was adopted by Congress to give railroad employees and other employees under its coverage a right of action against their employer for negligence. Suit may be brought in any federal court of the district in which the defendant does business, or in any state court where state venue statutes permit. 45 U.S.C. § 56 (1982). A suit brought in a state court may not be removed to the federal court in the manner of other civil actions, whatever the citizenship of the parties might be. 28 U.S.C. § 1445 (1982). The states are not at liberty to reject the jurisdiction conferred by Congress. Miles v. Illinois Cent. R. Co., 315 U.S. 698, 703, 62 S.Ct. 827, 830, 86 L.Ed. 1129 (1942). States, however, may elect to apply a doctrine of forum non conveniens, provided that they do not impose burdens on FELA cases which they do not apply to other civil actions. State of Missouri ex rel. Southern Ry. Co. v. Mayfield, 340 U.S. 1, 71 S.Ct. 1, 95 L.Ed. 3 (1950).

In State ex rel. Chicago, R.I. & P.R. Co. v. Riederer, supra, we issued a writ of mandamus against a trial judge who had taken the position that he could not apply the doctrine to FELA cases. We directed him to consider the defendant's claim of forum non conveniens, but did not instruct him as to the result to be reached. We listed six factors for consideration, as follows:

(1) "place of accrual of the cause of action"

(2) "location of witnesses"

(3) "the residence of the parties"

(4) "any nexus with the place of suit"

(5) "the public factor of the convenience to and burden upon the court and"

(6) "the availability to plaintiff of another court with jurisdiction of the cause of action which affords him a forum for his remedy". Riederer, 454 S.W.2d at 39.

The present defendant moved for dismissal of this action pointing out that the accident sued on occurred at Wichita, Kansas, 20 miles from the plaintiff's home and 446 miles from the place of trial, that the eyewitness resided there, that the treating physicians were in Wichita, and that the only connections with St. Louis were the presence of the defendant railroad's principal office, and the office of the plaintiff's attorney there. The trial court denied the motion and writ relief was refused. The motion was renewed before the judge to whom the case was assigned for trial, and denied by him. Error was assigned in the motion for new trial.

A discussion of basic principles should be helpful. The plaintiff, initially, may select the forum by filing suit in any venue allowed by law. The right of choice of forum, however, is not absolute. A suit is subject to dismissal if it is filed in a forum which is manifestly inconvenient. The court, in ruling upon the issue, may consider the convenience of the parties, as well as its own convenience. The people of Missouri are not obliged to make their courts available for lawsuits in which there is no significant Missouri nexus.

The decision on the question of dismissal for inconvenient forum involves a weighing of the factors set out in Riederer. For this reason, the decision is one which is largely committed to the discretion of the trial court. Discretion, however, is not synonymous with whim. The discretion is a controlled discretion. Trial courts are obliged to give attention to the doctrine and to dismiss cases which have no tangible relationship to Missouri.

An instructive case is Elliott v. Johnson, 292 S.W.2d 589 (Mo.1956). There we held that the trial court properly dismissed a suit brought in Vernon County, Missouri arising out of an automobile accident in Crawford County, Kansas, in which all parties to the suit were residents of Kansas. The opinion said that there was an adequate forum in Kansas, and that suit was brought in Missouri only for tactical reasons. 292 S.W.2d at 593-594. The court considered it of little significance that Missouri and Kansas courts were quite experienced in applying and predicting each other's laws. ¹

Even if the trial court initially overruled a motion to dismiss for inconvenient forum and the appellate court declined to intervene by writ, review after trial is not precluded. Our writs are issued grudgingly, and not to correct discretionary rulings. Inasmuch as interlocutory appellate relief is not available, errors may be asserted on appeal so long as the claim is timely raised in the trial court. A plaintiff takes a risk by proceeding to trial after notice of the defendant's claim of inconvenient forum. Lowe v. Norfolk & Western Ry. Co., 124 Ill.App.3d 80, 79 Ill.Dec. 238, 463 N.E.2d 792, 798 (1984).

Turning to the facts of this case, there is inevitably some inconvenience when there is a long distance between the place of an accident and the place of trial. Eyewitnesses and treating physicians who are unable or unwilling to travel to the trial must be presented through the much less satisfactory method of deposition. Counsel must travel to take depositions at the place of the accident. Investigation may be more difficult, and witnesses located in investigation may not be compelled to appear at trial. There is substantial expense if witnesses are transported to the trial. Trial judges should consider dismissal when any suit for personal injuries is brought at a great distance from the place of the accident, unless there is some nexus with the place of trial.

Convenience of counsel is of minimal significance. We are confident that there is no place in the United States where excellent lawyers qualified to try personal injury cases cannot be found. Almost all American jurisdictions, furthermore, admit out-of-state counsel pro hac vice.

Nor is residence of expert witnesses an important consideration. It is to be expected that counsel for both sides will look for experts at or near the place of trial, wherever that may be. In a case involving a large claim, important experts will gladly travel wherever they are needed, for sufficient consideration.

Even though a contrary holding might well be sustained in the future, we are unable to conclude that the trial judges who ruled on the issue in this case can be said to have committed abuse of discretion in declining to dismiss. A controlling circumstance is that the defendant railroad company was sued in the city in which its general headquarters was located. This location may be considered its residence, and residence is one of the factors highlighted in Riederer. A plaintiff is invariably allowed to sue in the place of his or her residence, even though the facts giving rise to the claim happened far away. See Koster v. American Lumbermen's Mutual Casualty Co., 330 U.S. 518, 524, 67 S.Ct. 828, 831, 91 L.Ed. 1067 (1947). It is seldom impermissibly inconvenient to sue a defendant at that defendant's place of residence. The defendant cites Rozansky Feed Co. Inc. v. Monsanto Co., 579 S.W.2d 810 (Mo.App.1979), in which the dismissal of a suit for forum non conveniens was affirmed even though one of the corporate defendants had its principal office in the county in which suit was brought. The case is distinguishable because there was also a nonresident corporate defendant. The court of appeals, furthermore, sustained an exercise of discretion, just as we do here.

Inasmuch as we now have a trial record, it is proper to consider that record in deciding whether the trial court erred in its ruling. Barrett v. Missouri Pacific R. Co., 688 S.W.2d 397 (Mo.App.1985). The two eyewitnesses testified in person. The defendant produced all but one of its witnesses live. The defendant complains of the lengthy reading of depositions, but these were of the plaintiff's witnesses and treating physicians. Doctors often testify by deposition, even in trials in their home area. We do not discern inconvenience in the trial sufficient to demonstrate abuse of discretion or require reversal.

We have given attention to two relatively recent cases in the Illinois courts which seem well considered and consistent with our view of forum non conveniens. Wieser v. Missouri Pacific R. Co., 98 Ill.2d 359, ...