Elliott v. Johnston

• Decision Date: 09 April 1956
• Docket Number: 44869,44870,44871,44867,44868,Nos. 44866,No. 2,s. 44866,2
• Parties: Barbara Ann ELLIOTT (Plaintiff), Appellant, v. Herman E. JOHNSTON (Defendant), Respondent. Clifford ELLIOTT (Plaintiff), Appellant, v. Herman E. JOHNSTON (Defendant), Respondent. Clifford ELLIOTT and Barbara Ann Elliott, (Plaintiffs), Appellants, v. Herman E. JOHNSTON (Defendant), Respondent. Clifford ELLIOTT and Barbara Ann Elliott (Plaintiffs), Appellants, v. Herman E. JOHNSTON (Defendant), Respondent. Mary Ann ELLIOTT, by her parents and natural guardians, Clifford Elliott and Barbara Ann Elliott (Plaintiff), Appellant, v. Herman E. JOHNSTON (Defendant), Respondent. Ruby Mae ELLIOTT, by her parents and natural quardians, Clifford Elliott and Barbara Ann Elliott (Plaintiff), Appellant, v. Herman E. JOHNSTON (Defendant), Respondent
• Court: Missouri Supreme Court

Page 589

292 S.W.2d 589

365 Mo. 881

Barbara Ann ELLIOTT (Plaintiff), Appellant, v. Herman E. JOHNSTON (Defendant), Respondent.

Clifford ELLIOTT (Plaintiff), Appellant, v. Herman E. JOHNSTON (Defendant), Respondent.

Clifford ELLIOTT and Barbara Ann Elliott, (Plaintiffs), Appellants, v. Herman E. JOHNSTON (Defendant), Respondent.

Clifford ELLIOTT and Barbara Ann Elliott (Plaintiffs), Appellants, v. Herman E. JOHNSTON (Defendant), Respondent.

Mary Ann ELLIOTT, by her parents and natural guardians,

Clifford Elliott and Barbara Ann Elliott

(Plaintiff), Appellant,

v.

Herman E. JOHNSTON (Defendant), Respondent.

Ruby Mae ELLIOTT, by her parents and natural quardians,

Clifford Elliott and Barbara Ann Elliott

(Plaintiff), Appellant,

v.

Herman E. JOHNSTON (Defendant), Respondent.

Nos. 44866, 44867, 44871, 44870, 44869, 44868.

Supreme Court of Missouri, Division No. 2.

April 9, 1956.

Pete Farabi, Pittsburg, Kan., Edward V. Sweeney, Monett, for appellant.

Ewing, Ewing & Ewing, Boyd Ewing, Nevada, for respondent.

BARRETT, Commissioner.

The Circuit Court of Vernon County refused to accept jurisdiction of these six actions for damages for personal injuries and loss of services, resulting from a collision of automobiles, and, upon separate motions to quash service, entered judgments dismissing the actions. The questions for determination upon this consolidated appeal are whether, in the unique circumstances of these records, the plaintiffs, citizens and residents of Kansas, are entitled as a matter of right to prosecute the actions in Missouri against the defendant, also a citizen and resident of Kansas, and whether the court abused its discretion in dismissing the actions.

The plaintiffs are Clifford and Barbara Elliott, of Mulberry, Crawford County, Kansas, and their daughters, Ruby Mae and Mary Ann, fifteen and eleven years of age. The defendant, Herman E. Johnston, is a resident of Fort Scott, Bourbon County, Kansas. On February 11, 1953, according to the allegations of the petitions, Mr. Elliott, with his wife and daughters as passengers, was driving his 1951 Chevrolet sedan in a southerly direction on U.S. Highway 69, about six miles north of Arma, in Crawford County, Kansas, when it was involved in a collision with a 1947 Cadillac sedan driven by Herman E. Johnston. It is alleged in the petitions that Johnston was negligent in that he was driving his automobile on the wrong side of the highway, failed to yield the right of way, failed to maintain a vigilant lookout, was driving at a high and reckless speed, and attempted to pass another vehicle in a 'no-passing' zone. It is charged that Johnston's conduct was wilful and wanton and in the six actions actual and punitive damages are claimed in the sums of $121,500 and $40,000 respectively. The husband's action is in three counts, the first praying actual and punitive damages for his personal injuries in the total sum of $50,000, the second for the loss of his wife's services for which he asks $10,000 and the third, $1,400 for the destruction of his automobile and $100 for the loss of its use. The wife's action seeks the recovery of $50,000 actual and punitive damages for her personal injuries. Each of the daughters, by their parents as natural guardians, pray for $20,000 actual and punitive damages for their personal injuries and there are two suits by the husband and wife each asking $5,000 damages for the loss of their daughters' services and for their medical expense.

In each of the actions timely motions to quash the service were filed and, after a full hearing upon the motions, the Circuit Court of Vernon County made a detailed finding of fact and 'of its own motion' refused to accept jurisdiction of the six actions and entered judgments of dismissal. Thus, for the first time in Missouri, the question is presented whether, in the absence of specific statutory authorization, the rather recent 'doctrine of forum non conveniens' is applicable to this transitory nonstatutory tort action and, if so, whether the court abused its discretion in refusing to accept jurisdiction. The rule or doctrine of forum non conveniens, as applied to strictly domestic actions, has had its recent widespread genesis in this country in the following law review articles and annotated reports: annotation 32 A.L.R. 6; 29 Col.L.R. 1 (1929); 44 Har.L.R. 41 (1931); 35 Cal.L.R. 380 (1947) and are all collected in the footnotes to Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055. The comparatively recent development of the doctrine as now understood and applied in actions of the type involved here is noted because there have been several Missouri cases which involved the doctrine but the fact was not recognized or fully appreciated and the cases were not plainly disposed of upon the applicability or nonapplicability of the rule. In those cases the court spoke of 'comity' and, for the most part, was concerned with fraud in the procurement of the service of process or fraud in foisting jurisdiction upon the court and, as will be noted, there were other distinguishing factors, but the court did not consciously apply the doctrine of forum non conveniens. The leading cases are Newlin v. St. Louis, S. F. R. Co., 1909, 222 Mo. 375, 121 S.W. 125; Lessenden v. Missouri Pac. Ry. Co., 1911, 238 Mo. 247, 142 S.W. 332; State ex rel. Pacific Mutual Life Ins. Co. v. Grimm, 1912, 239 Mo. 135, 143 S.W. 483; Gold Issue Mining & Milling Co. v. Pennsylvania Fire Ins. Co., 1916, 267 Mo. 524, 184 S.W. 999, and Bright v. Wheelock, 1929, 323 Mo. 840, 20 S.W.2d 684, 66 A.L.R. 263. The first time the phrase or maxim was consciously applied in Missouri was in State ex rel. Southern Railway Co. v. Mayfield, 1949, 359 Mo. 827, 224 S.W.2d 105, and that case arose under the Federal Employers' Liability Act 45 U.S.C.A., Sec. 51 et seq., and except for its applicable analogies and certain constitutional implications suggested by the Supreme Court of the United States, is now distinguishable as a matter of principle from this transitory nonstatutory tort action. State of Missouri ex rel. Southern Ry. Co. v. Mayfield, 340 U.S. 1, 71 S.Ct. 1, 95 L.Ed. 3, and finally, State ex rel. Southern Railway Co. v. Mayfield, 1951, 362 Mo. 101, 240 S.W.2d 106.

These actions were instituted and service of process was had upon the defendant, Johnston, in Vernon County, Missouri, in these circumstances: About three months after the collision and injuries Mr. Pete Farabi, an attorney with offices in Pittsburg, Crawford County, Kansas, notified, by telephone and letter, another firm of lawyers in Pittsburg who were representing a liability insurance company and under the terms of the policy Mr. Johnston, that he had been employed to represent the Elliotts in their claims for damages and that any future negotiations were to be conducted through him and that they 'were not to go out and talk with his clients.' Some weeks later and ten or twelve days before the suits were filed Mr. Farabi made a trip to Fort Scott and called on Mr. Johnston at his home. He says that he did not take a statement from Mr. Johnston or discuss the merits of his cases with him, but he told him that he had the cases and was going to sue him but that he 'would rather sue him in Missouri than in Bourbon County, Kansas but didn't tell him the reason.' He said, 'I just told him, I represented the plaintiffs and I was going to sue him and just asked him if he ever had occasion to go to Missouri and he said he did; he said he went over there occasionally; I said I could sue you here but I would like to sue you over there and he said I go over there once in a while to Missouri.' Johnston testified that on the occasion of Mr. Farabi's visit he said, 'Yes, he asked me if I would like to be tried in Missouri and I told him I didn't care; in fact I'd rather be tried there because I just didn't want to be tried in Fort Scott or Pittsburg.' Mr. Farabi did not talk to Johnston again but he 'had a fellow who had been keeping check on this boy as to his whereabouts, where he was going,' and on the day the suits were filed his informant telephoned that Mr. Johnston was going to Nevada, Missouri, on that date. Mr. Farabi had already prepared his petitions, leaving the name of the county blank, and upon receiving the telephone call, drove to Nevada and filed the six suits. He waited while the clerk prepared the petitions and summonses and took them to the sheriff. He accompanied the sheriff to the Thomas Pharmacy, a block or so from the court house, and there pointed out Mr. Johnston as the man to be served. The sheriff served the petitions and summonses on Johnston and, accordingly, made his return of personal service in Vernon County, Missouri.

The court found, as urged in the motions to quash, that there was fraud in the procurement of service of process. But, laying to one side for the time being whether there was improper collusion between Mr. Farabi and Johnston, there was no fraud in its true meaning in the filing of the suits in Vernon County and the procurement of the service of process. See, for example, Bowman v. Neblett, Mo.App., 24 S.W.2d 697. The defendant, Johnston, may have voluntarily appeared in Vernon County to be served but he did not enter his 'voluntary appearance' to the suits under V.A.M.S. Sec. 506.110. The plaintiffs had existing claims against Johnston 'under the law of another state' and could therefore institute their actions in Missouri, providing they were able to obtain service of process upon the defendant. V.A.M.S. Sec. 507.020. The action was transitory, the defendant, Johnston, was a nonresident of Missouri and, therefore, the venue of the actions was 'in any county in this state' in which he could be found and served the process. V.A.M.S. Sec. 508.010. It has been said that Section 507.020, providing for actions in Missouri upon claims existing by reason of the law of another state, is a legislative declaration of...