Dow Chemical Co. v. Castro Alfaro

• Citation: 786 S.W.2d 674
• Decision Date: 28 March 1990
• Docket Number: No. C-7743,C-7743
• Parties: , 58 USLW 2620, 21 Envtl. L. Rep. 21,281 DOW CHEMICAL COMPANY and Shell Oil Company, Petitioners, v. Domingo CASTRO ALFARO et al., Respondents.
• Court: Supreme Court of Texas

Page 674

786 S.W.2d 674

1990 A.M.C. 2562, 58 USLW 2620, 21

Envtl. L. Rep. 21,281

DOW CHEMICAL COMPANY and Shell Oil Company, Petitioners, v. Domingo CASTRO ALFARO et al., Respondents.

No. C-7743.

Supreme Court of Texas.

March 28, 1990.

Rehearing Overruled May 2, 1990.

Joe R. Greenhill, Austin, F. Walter Conrad and Michael Samford, Houston, Russell J. Weintraub, Austin, Burt Ballanfant, Houston, for petitioners.

Charles S. Siegel, Dallas, for respondents.

OPINION

RAY, Justice.

At issue in this cause is whether the statutory right to enforce a personal injury or wrongful death claim in the Texas courts precludes a trial court from dismissing the claim on the ground of forum non conveniens. The court of appeals held that Texas courts lack the authority to dismiss on the grounds of forum non conveniens. 751 S.W.2d 208. Because we conclude that the legislature has statutorily abolished the doctrine of forum non conveniens in suits brought under section 71.031 of the Texas Civil Practice and Remedies Code, we affirm the judgment of the court of appeals.

Domingo Castro Alfaro, a Costa Rican resident and employee of the Standard Fruit Company, and eighty-one other Costa Rican employees and their wives brought suit against Dow Chemical Company and Shell Oil Company. The employees claim that they suffered personal injuries as a result of exposure to dibromochloropropane (DBCP), a pesticide manufactured by Dow and Shell, which was allegedly furnished to Standard Fruit. The employees exposed to DBCP allegedly suffered several medical problems, including sterility.

Alfaro sued Dow and Shell in Harris County district court in April 1984. The amended petition alleged that the court had jurisdiction under article 4678 of the Revised Statutes. ¹ Following an unsuccessful attempt to remove the suit to federal court, Dow and Shell contested the jurisdiction of the trial court almost three years after the filing of the suit, and contended in the alternative that the case should be dismissed under the doctrine of forum non conveniens. Despite a finding of jurisdiction, the trial court dismissed the case on the ground of forum non conveniens.

Section 71.031 of the Civil Practice and Remedies Code provides:

(a) An action for damages for the death or personal injury of a citizen of this state, of the United States, or of a foreign country may be enforced in the courts of this state, although the wrongful act, neglect, or default causing the death or injury takes place in a foreign state or country, if:

(1) a law of the foreign state or country or of this state gives a right to maintain an action for damages for the death or injury;

(2) the action is begun in this state within the time provided by the laws of this state for beginning the action; and

(3) in the case of a citizen of a foreign country, the country has equal treaty rights with the United States on behalf of its citizens. ²

(b) All matters pertaining to procedure in the prosecution or maintenance of the action in the courts of this state are governed by the law of this state.

(c) The court shall apply the rules of substantive law that are appropriate under the facts of the case.

Tex.Civ.Prac. & Rem.Code Ann. § 71.031 (Vernon 1986). At issue is whether the language "may be enforced in the courts of this state" of Section 71.031(a) permits a trial court to relinquish jurisdiction under the doctrine of forum non conveniens.

The statutory predecessors of Section 71.031 have existed since 1913. The original law states "[t]hat whenever the death or personal injury of a citizen of this State or of a country having equal treaty rights with the United States on behalf of its citizens, has been or may be caused by a wrongful act, neglect or default ... such right of action may be enforced ... in the courts of this State...." Act of Apr. 8, 1913, ch. 161, 33d Leg., 1913 Tex.Gen.Laws 338, 338-39, repealed by Revised Statutes, § 2, 39th Leg., 1925 Tex.Rev.Civ.Stat. 2419. Another act was passed in 1917 to expand the right of action to citizens of the United States. Act of Mar. 30, 1917, ch. 156, 35th Leg., 1917 Tex.Gen.Laws 365, repealed by Revised Statutes, § 2, 39th Leg., 1925 Tex Rev.Civ.Stat. 2419. The statute was codified in 1925 and amended in 1975. Revised Statutes, sec. 1, art. 4678, 35th Leg., 1925 Tex.Rev.Civ.Stat. 2, 1283, amended by Act of May 29, 1975, ch. 530, § 2, 64th Leg., 1975 Tex.Gen.Laws 1381, 1382, repealed by Civil Practice and Remedies Code, ch. 959, § 9, 69th Leg., 1985 Tex.Gen.Laws 3242, 3322. The 1975 amendment allowed Texas courts to apply the law of the state of Texas in actions arising under old article 4678. The amendment responded to this court's decision in Marmon v. Mustang Aviation, which held that the doctrine of lex loci delicti applied to old article 4678. Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex.1968); see Gutierrez v. Collins, 583 S.W.2d 312, 317-18 n. 3 (Tex.1979).

Dow and Shell argued before this Court that the legislature did not intend to make section 71.031 a guarantee of an absolute right to enforce a suit in Texas brought under that provision. In his dissent, Justice Gonzalez agrees, concluding that the legislature could not have intended to preclude application of forum non conveniens to suits brought under the statute because "[f]orum non conveniens did not arrive upon the judicial landscape of this state until after the predecessors to section 71.031 were enacted." 786 S.W.2d 691. This conclusion is false. The doctrine of forum non conveniens appeared in Texas well before the enactment of article 4678 by the legislature in 1913.

I.

The doctrine of forum non conveniens arose from the doctrine of forum non competens in Scottish cases. See, e.g., Vernor v. Elvies, 6 Dict. of Dec. 4788 (1610); see also Barrett, The Doctrine of Forum Non Conveniens, 35 Calif.L.Rev. 380, 386-87 & n. 35 (1947). The Scottish courts recognized that the plea of forum non competens applied when to hear the case was not expedient for the administration of justice. In Longworth v. Hope, 3 Sess.Cas. (3d ser.) 1049, 1053 (1865), the court stated:

The next question is the question of forum non competens. Now the plea usually thus expressed does not mean that the forum is one in which it is wholly incompetent to deal with the question. The plea has received a wide signification, and is frequently stated in reference to cases in which the Court may consider it more proper for the ends of justice that the parties should seek their remedy in another forum.

Id.; see Barrett, supra, at 387, n. 35. By the end of the nineteenth century, English courts had "accepted the doctrine of forum non conveniens as a means of preventing abuse of the court's process when the plaintiff's choice of forum is vexatious and works unnecessary hardship on the defendant." Barrett, supra, at 388.

In 1929, Paxton Blair, a Wall Street lawyer, brought the term "forum non conveniens" into American law with his article entitled, The Doctrine of Forum Non Conveniens in Anglo-American Law. See generally, Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum.L.Rev. 1 (1929). Although Blair found only three or four cases in which the American courts had used the term, he concluded:

Upon an examination of the American decisions illustrative of the doctrine of forum non conveniens, it becomes apparent that the courts of this country have been for years applying the doctrine with such little consciousness of what they were doing as to remind one of Molier's M. Jourdain, who found he had been speaking prose all his life without knowing it.

Id. at 21-22. Blair cited hundreds of cases dismissing suits for the same reasons now employed under the doctrine of forum non conveniens. Id. Following the publication of Blair's article, the United States Supreme Court applied the doctrine to suits in admiralty brought between aliens, Charter Shipping Co. v. Bowring, Jones, & Tidy, Ltd., 281 U.S. 515, 517, 50 S.Ct. 400, 401, 74 L.Ed. 1008 (1930); Canada Malting Co. v. Paterson S.S., Ltd., 285 U.S. 413, 422, 52 S.Ct. 413, 415, 76 L.Ed. 837 (1932); to cases involving the internal affairs of corporations, Rogers v. Guaranty Trust Co., 288 U.S. 123, 130, 131, 53 S.Ct. 295, 297, 298, 77 L.Ed. 652 (1933); and to federal suits involving a state's system for regulating the oil industry, Railroad Comm'n v. Rowan & Nichols Oil Co., 310 U.S. 573, 584, 60 S.Ct. 1021, 1025, 84 L.Ed. 1368 (1940). See Barrett, supra, at 395-96. By 1941, "the familiar doctrine of 'forum non conveniens' ... [was] firmly imbedded in our law." Baltimore & O.R.R. v. Kepner, 314 U.S. 44, 55-56, 62 S.Ct. 6, 11-12, 86 L.Ed. 28 (1941) (Frankfurter, J., dissenting).

Texas courts applied the doctrine of forum non conveniens in several cases prior to the enactment of article 4678 in 1913. In 1890, this court in dicta recognized the power of a court to refuse to exercise jurisdiction on grounds essentially the same as those of forum non conveniens. See Morris v. Missouri Pac. Ry., 78 Tex. 17, 21, 14 S.W. 228, 230 (1890). In Morris, we stated:

We do not think the facts alleged show the action to be transitory. But, if so, it has been held in such actions, where the parties were non-residents and the cause of action originated beyond the limits of the state, these facts would justify the court in refusing to entertain jurisdiction. Railway Co. v. Miller, 19 Mich. 305. Jurisdiction is entertained in such cases only upon principles of comity, and not as a matter of right. Gardner v. Thomas, 14 Johns. 136; Wells, Juris. § 115.

Id. In Mexican National Railroad v. Jackson, 89 Tex. 107, 33 S.W. 857 (1896), this court discussed both the dissimilarity doctrine and the potentiality of docket backlog. With regard to the latter, we stated:

If our courts assume to adjust the rights of parties against those railroads, growing out of such facts as in this case, we will offer an invitation to all such persons who might...