Central of Georgia Ry. Co. v. Phillips

• Decision Date: 10 September 1970
• Docket Number: 6 Div. 504
• Citation: 286 Ala. 365,240 So.2d 118
• Parties: CENTRAL OF GEORGIA RAILWAY COMPANY, a Corporation v. Willis W. PHILLIPS.
• Court: Alabama Supreme Court

Page 118

240 So.2d 118

286 Ala. 365

CENTRAL OF GEORGIA RAILWAY COMPANY, a Corporation v. Willis W. PHILLIPS.

6 Div. 504.

Supreme Court of Alabama.

Sept. 10, 1970.

Rehearing Denied Oct. 29, 1970.

Sadler, Sadler, Sullivan & Sharp, Birmingham, for appellant.

Rives, Peterson, Pettus & Conway, Birmingham, for appellee.

MERRILL, Justice.

This appeal is from a judgment in favor of appellee in the amount of $60,000.00 in an action brought under the Federal Employers' Liability Act (F.E.L.A.), 45 U.S.C.A. § 51 et seq. A motion for a new trial was overruled.

The complaint was in two counts. Count One alleged, in substance, that on April 7, 1962, the plaintiff was driving a truck owned by the defendant and was caused to become drowsy, gassed, and to go to sleep as a proximate consequence of the truck's defective condition in allowing exhaust fumes, motor fumes and gas fumes to escape into the cab of the truck. This count charged negligence on the part of the officers or agents of the defendant or a defect or insufficiency in the machinery due to the negligence of the defendant. The plaintiff alleged that he ran off the road while driving the truck on U.S. Highway 319 in Johnson County, Georgia, at a point approximately 11 miles north of Wrightsville, Georgia.

Count Two claimed negligence on the part of the defendant in failing to provide the plaintiff a reasonably sale place to work.

Defendant filed a 'Motion to Dismiss,' asking that the suit be dismissed by the court on the doctrine of Forum non conveniens. This motion was subsequently amended, pointing out in more detail the reasons why the defendant felt the case should be dismissed. The presiding circuit judge entered an order on October 5, 1965, in which, after citing cases listed later in this opinion, he declined to enter upon a consideration of the issues presented by the amended motion to dismiss.

The main point in this appeal is raised by the first three assignments of error which charge that the court erred in overruling the motion to dismiss. That motion, based on the Forum non conveniens doctrine, alleges that the involved accident took place in Georgia; that the plaintiff is a resident of Georgia; that the defendant is a Georgia corporation; all the witnesses reside in Georgia; that the action arises under the Federal Employers' Liability Act; that Birmingham and Alabama have no connection with the lawsuit; that the trial of the case would assist in congesting an already congested court docket; that Jefferson County is not a convenient forum in which to try the case and that the trial would be inconvenient, expensive, vexations and oppressive to the defendant and its witnesses.

The same point presented here was raised in Ex parte State ex rel. Southern Railway Company, 254 Ala. 10, 47 So.2d 249. The court cited our statute, Tit. 7, § 97, Code 1940, which provides:

'Whenever, either by common law or the statutes of another state, a cause of action, either upon contract, or in tort, has arisen in such other state against any person or corporation, such cause of action shall be enforcible in the courts of this state, in any county in which jurisdiction of the defendant can be legally obtained in the same manner in which jurisdiction could have been obtained if the cause of action had arisen in this state.'

The court also said:

'We turn then first to a consideration of the above-quoted statute and in doing so must be guided by the well recognized canon of construction that where there is nothing to indicate the contrary, words in a statute will be given the meaning which is generally accepted in popular, everyday usage. (Citations omitted)

'In the light of this generally accepted rule of construction, we are constrained to conclude, as did the respondent circuit judge, that the question at bar is foreclosed by the statute itself. The language is plain and unambiguous and there is no field to bring into play any other rule of interpretation. In effect it grants to a non-resident plaintiff the right to enforce an action arising in another state, against any person or corporation, in the courts of this state, the single qualification being that it be brought in a county where jurisdiction of defendant can be legally obtained in the same manner in which jurisdiction could have been obtained if the cause of action had arisen in this state. The wording is that the 'cause of action Shall be enforcible in the courts of this state,' and to read into the statute the vesting of a judicial discretion to accept or decline jurisdiction would do violence to the language employed.

'No case has been called to our attention, and we have found none, which involved the specific question whether said statute is mandatory or permissive, nor do we find any case from this court recognizing or in any wise considering the doctrine of Forum non conveniens. The nearest approach to the specific question is to be found in the case of Jefferson Island Salt Co. v. E. J. Longyear Co., 210 Ala. 352, 98 So. 119, 122, dealing with Acts, Special Session 1907, page 67, the progenitor of § 97, Title 7 of the Code of 1940. It was there said of that statute: 'Why the Legislature desired to burden the courts of this state with settling controversies between outsiders and which arose in other states is difficult to appreciate, but is, of course, a question of legislative policy with which the courts must not be concerned.' Thus, this court then regarded the statutory provision as a matter of legislative policy, vesting no discretion in the courts; and to this view we still adhere. The inevitable consequences of the trial in Alabama courts of 'controversies between outsiders and which arose in other states' are added burdens upon the courts, added expense and inconvenience. That fact the legislature must have had in mind when enacting the statute; certainly subsequent legislatures have had reason and opportunity to give it consideration. Significantly, we think, the statute has remained unchanged over a long period of years.

'There being no field of operation for judicial discretion, there could, of necessity, be no basis for application of the doctrine of Forum non conveniens in any case which might arise under the statute. * * *'

The appellant suggests that the case of State of Missouri ex rel. Southern Railway Co. v. Mayfield, 340 U.S. 1, 71 S.Ct. 1, 95 L.Ed. 3, provides a platform from which our decision in Ex parte State ex rel. Southern Railway Co., 254 Ala. 10, 47 So.2d 249, should be reexamined as to whether the doctrine of Forum non conveniens is to be recognized. The Mayfield case merely allows that state courts to determine whether or not the doctrine will apply in F.E.L.A. cases. The Missouri Supreme Court, after remandment in Mayfield, supra, also held that Forum non conveniens would not be available in Missouri in F.E.L.A. cases. State of Missouri ex rel. Southern Railway Co....