Ex parte State ex rel. Southern Ry. Co., 6 Div. 968

• Decision Date: 22 June 1950
• Docket Number: 6 Div. 968
• Citation: 47 So.2d 249,254 Ala. 10
• Parties: Ex parte STATE ex rel. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

Page 249

47 So.2d 249

254 Ala. 10

Ex parte STATE ex rel. SOUTHERN RY. CO.

6 Div. 968.

Supreme Court of Alabama.

June 22, 1950.

Benners, Burr, Stokely & McKamy, of Birmingham, for petitioner.

Cabaniss & Johnston, of Birmingham, amicus curiae in support of the petition.

Jackson, Rives & Pettus, of Birmingham, for respondent.

SIMPSON, Justice.

This is an original petition for mandamus to require the Honorable J. Russell McElroy, Judge of the Circuit Court of the Tenth Judicial Circuit, to exercise discretion upon a motion to decline jurisdiction of, and to dismiss without prejudice, a suit under the doctrine of forum non conveniens.

The complaint, stating a cause of action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., was filed in the circuit court of Jefferson County, Alabama, by E. V. Barrett, a resident of the State of Georgia, against the Southern Railway Company, a corporation organized under the laws of the State of Virginia, to recover damages for personal injuries sustained by plaintiff, in the course of his employment, as the result of an accident occurring in the State of Georgia.

In due course the defendant below, petitioner here, presented to the respondent a motion alleging, inter alia, that there were courts, both federal and state, in the state of plaintiff's residence, located near the scene of the alleged accident and near the home of the plaintiff, having jurisdiction of the action and available to plaintiff; that defendant operated a line of railroad in the State of Georgia, was subject to process issued out of the courts of that state, and owned property therein subject to execution and sale under any judgment obtained against it in any court in said state, based upon the cause of action in question; that none of the material witnesses in the case are residents of Alabama or subject to process issued out of the circuit court of Jefferson County, Alabama, to compel their attendance upon said court; that defendant would be at a disadvantage if compelled to try the case upon depositions of witnesses who might not consent to appear as witnesses in said Alabama court that trouble, loss of time, and expense incident to trial of the case in the Alabama court would be much greater than would be involved in the trial of the case in a court in the State of Georgia; that the trial of the case in the circuit court of Jefferson County would result in an unnecessary burden and expense to that court, to the detriment of resident litigants and to Jefferson County; and that the only persons involved in said case who reside in this state are the attorneys for plaintiff.

The respondent judge reached and stated the conclusion that 'the court must exercise jurisdiction in the instant case, and that the court does not have the discretion to grant the motion, even if all of the facts stated in the motion are true, and even though there be no other facts which would overbear the facts stated in the motion. In other words, the court respectfully declines to enter upon a consideration of whether or not it should exercise its discretion to dismiss the action, because the court considers that the statute does not permit the exercise of any such discretion.'

The statute is as follows: '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.' Code 1940, Title 7, § 97.

It is not questioned that the defendant, petitioner, is engaged in business in Jefferson County, Alabama, and suable therein.

We have been favored with excellent briefs by counsel for the opposing parties, and we have given them careful and attentive consideration. Petitioner takes the position that the respondent erred in declining to exercise a discretion and to enter upon a consideration of its motion on the merits thereof; and in support of that position argues (1) that the statute...