Ex parte Southern Bell Tel. & Tel. Co., 7 Div. 314

Citation267 Ala. 139,99 So.2d 118
Decision Date20 June 1957
Docket Number7 Div. 314
PartiesEx parte SOUTHERN BELL TEL. & TEL. CO.
CourtSupreme Court of Alabama

Lange, Simpson, Robinson & Somerville, Birmingham, Hood, Inzer, Martin & Suttle, Gadsden, Steiner, Crum & Baker, Montgomery, for petitioners.

Hawkins & Rhea, Gadsden, for respondent.

STAKELY, Justice.

This is an original petition for mandamus seeking to review an order of the Hon. A. B. Cunningham, Judge of the Sixteenth Judicial Circuit, overruling the petitioner's motion to dismiss or to transfer a cause from Etowah County to Montgomery County under the common law doctrine of forum non conveniens.

The status of the proceedings, insofar as here pertinent, is as follows. A suit for malicious prosecution was filed in the Circuit Court of Etowah County by Clarence B. Hardy against the Southern Bell Telephone and Telegraph Company, a corporation, and John N. Relfe based on an incident which is alleged to have occurred at Montgomery, Montgomery County, Alabama. From the pleadings, it appears that both the plaintiff, Clarence B. Hardy, and the defendant, John N. Relfe, are residents of Montgomery County. The co-defendant, the Southern Bell Telephone and Telegraph Company, is a foreign corporation qualified to do business in Alabama and was doing business by agent in Etowah County and in Montgomery County at the time the present cause of action allegedly arose and at the time the plaintiff's suit for malicious prosecution was instituted. Personal service was had on the defendant, the Southern Bell Telephone and Telegraph Company, in Etowah County and the co-defendant, Relfe, was served by means of a branch summons in accordance with the provisions of Code of 1940, Title 7, § 185.

Each defendant filed a plea in abatement attacking the venue of the Circuit Court of Etowah County. The plaintiff's demurrers to the pleas were sustained. The defendants then filed a motion to dismiss or to transfer the case to Montgomery County under the doctrine of forum non conveniens and the applicable Alabama statutes and constitutional provisions.

In support of the motion the following factors in substance were alleged. All acts and incidents directly or indirectly relating to the suit instituted by the plaintiff occurred in the City of Montgomery or in Montgomery County. Both the plaintiff and the defendant, Relfe, reside in Montgomery County and the co-defendant, the Southern Bell Telephone and Telegraph Company, is and was doing business in said county as the time the alleged cause of action arose. In order to have the trial in Gadsden, Etowah County, Alabama, it would be necessary to transport numerous witnesses of the defendants from Montgomery County to Etowah County, a distance of 118 miles, and maintained thereat during the time of the trial at great expense to the defendants. Of the above mentioned witnesses, approximately eight are employees of the defendant, the Southern Bell Telephone and Telegraph Company, and under a contract between the union (representing the employees) and the company, the company is required to pay travel expenses and full salary or wages lost by its employees as a result of attendance at the trial. This is true whether said employees be witnesses for the defendant or for the plaintiff. The expense of bringing its employee witnesses to Gadsden, Alabama, for the trial of this case would in the opinion of the defendants cost approximately $3,000 more than if the trial was held at Montgomery, Alabama.

The motion further alleges that 'The defendants will probably have as witnesses William F. Thetford, Circuit Solicitor; Honorable Alex Marks, Judge of the Court of Common Pleas; Mac Sim Butler, Sheriff; E. V. Lacy, Lt., Police Department; R. D. Moody, Policeman; Van Pruitt, Assistant State Toxicologist, all being public officials and employees at Montgomery, Alabama. It is estimated that, if said witnesses are required to attend the trial of this case in this court, it will require, at a minimum, 3 additional days which said officials would be absent from the performance of their usual duties in excess of what they would be required to loss if they attended the trial of a case based on the same cause of action at Montgomery, Alabama. The plaintiff will not be prejudiced by the dismissal of this case, without prejudice to him, * * * inasmuch as there still remains ample time, under the one year statute of limitations, of the State of Alabama, within which he might file another suit in a more convenient and proper forum. The defendants offer to pay the costs incurred to date by all parties in this court, should the court dismiss this cause.'

In an order denying the motion in question, the trial court stated: '* * * the Court finds that the defendants, separately and severally, have by legal evidence established the truth of the material allegations of said motion; however, after an investigation of the law, the Court is of the opinion that the common law doctrine or principle of forum non conveniens is not recognized in Alabama * * *.'

The defendants then subsequently filed a petition for mandamus in the Supreme Court. On the...

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6 cases
  • Ex Parte Indiana Mills & Mfg., Inc., 1070229.
    • United States
    • Alabama Supreme Court
    • 5 Diciembre 2008
    ...on motions to transfer under the common-law doctrine of forum non conveniens since at least 1957. See Ex parte Southern Bell Tel. & Tel. Co., 267 Ala. 139, 99 So.2d 118 (1957). Given the clear mandate of § 6-3-21.1 and this Court's historic practice, we decline to abandon our review of ruli......
  • Alabama Power Co. v. Smith
    • United States
    • Alabama Supreme Court
    • 22 Marzo 1962
    ...Ala. 108, 142 So. 414; Ex parte Kemp, 232 Ala. 434, 168 So. 147; Leath v. Smith, 240 Ala. 639, 200 So. 623; Ex parte Southern Bell Tel. & Tel. Company, 267 Ala. 139, 99 So.2d 118. Demurrer to The Power Company has assigned as error the action of the court in overruling its demurrer to the c......
  • Vandergriff v. Southern Ry. Co.
    • United States
    • Alabama Supreme Court
    • 23 Septiembre 1988
    ...the debates of the constitutional convention are not binding on this Court, they are highly persuasive. Ex parte Southern Bell Tel. & Tel. Co., 267 Ala. 139, 99 So.2d 118 (1957); City of Montgomery v. Graham, 255 Ala. 685, 53 So.2d 363 (1951); Louisville & N.R.R. v. State, 201 Ala. 317, 78 ......
  • Ex parte Illinois Cent. Gulf R. Co.
    • United States
    • Alabama Supreme Court
    • 23 Septiembre 1988
    ...on our dockets, we must nonetheless adhere to the mandate of § 232 of the constitution. As we said in Ex parte Southern Bell Tel. & Tel. Co., 267 Ala. 139, 142, 99 So.2d 118, 121 (1957): "[I]t is self-evident that inconvenience to witnesses and increased expenses of trial are a necessary re......
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