Flaiz v. Moore

• Decision Date: 03 January 1962
• Docket Number: No. 13850,13850
• Citation: 353 S.W.2d 74
• Parties: Theodore R. FLAIZ et al., Appellants, v. Jack Bernard MOORE, Sr., et al., Appellees.
• Court: Texas Court of Appeals

Page 74

353 S.W.2d 74

Theodore R. FLAIZ et al., Appellants, v. Jack Bernard MOORE, Sr., et al., Appellees.

No. 13850.

Court of Civil Appeals of Texas, San Antonio.

Jan. 3, 1962.

Rehearing Denied Jan. 31, 1962.

J. G. Hornberger, Laredo, for appellants.

Elmore H. Borchers, R. J. Goodman, Laredo, for appellees.

POPE, Justice.

This is an action upon a foreign transitory tort brought in Texas by non-resident plaintiffs against non-resident defendants. It is a pure case of forum non conveniens. The trial court sustained a plea to the jurisdiction and dismissed the action. Plaintiffs have appealed. Plaintiffs, Theodore R. Flaiz and wife, and Henry Benson and wife, are residents of Maryland. Defendant Jack Bernard Moore, Sr., is a resident of Arkansas, and defendant Jack Bernard Moore, Jr., is a resident of Oklahoma, where he was served with non-resident notice. The action is for personal injuries sustained in an automobile collision which occurred in the State of South Dakota. Plaintiffs filed suit in Webb County, Texas, and served Jack Moore, Sr., while he was temporarily in Texas.

Whether a court has jurisdiction over a foreign tort and, if it has, whether it should exercise it, are confusing and troublesome problems. Stumberg, Foreign Created Rights, 8 Tex.L.Rev. 173, 184, et seq.; Stumberg, Conflicts of Laws, 9 Tex.L.Rev. 21, 35. At least a part of the confusion in the law arises out of a failure to distinguish the party problem from the subject matter problem. The questions suggested by the two problems are different. The problem with respect to parties calls for an examination of the extent of the party contact with the forum. The problems with respect to the subject matter require decisions whether the imported foreign law is substantive or adjective law, whether the forum's judicial machinery is capable of handling the foreign law, and whether the foreign law is offensive to the forum's public policy.

Mr. Justice Cardozo, in the celebrated case of Loucks v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 198, 201, observed this difference between the problems. He first decided the matter of party contact with the forum by stating, 'Sometimes we refuse to act where all the parties are nonresidents * * *. That restriction need not detain us; in this case all are residents.' He next considered whether 'the cause of action in its nature offends our sense of justice or menaces the public welfare.'

What is the extent of the party contact with the forum? Logically, this should be the first determination, for if the nexus between the parties and the forum is so tenuous and ephemeral that the forum, Texas in this instance, has no interest and no Constitutional obligation, its refusal to exercise its jurisdiction is the end of the matter, and discussion about the strangeness of the foreign law becomes immaterial. The second problem is never reached. It is in connection with the party situation that the doctrine of forum non conveniens had its origin. It was applied in Scottish Courts during the seventeenth century, and was developed into a settled rule of practice during the next century. American Courts independently developed the rule sometime later. Barrett, Forum Non Conveniens, 35 Cal.L.Rev. 380, 386-388. Its original application was limited to instances in which all parties were non-residents. In this country it was applied to similar instances, as where the parties were all aliens. Rea v. Hayden, 3 Mass. 24, 25 (1807); Great Western Ry. Co. of Canada v. Miller, 19 Mich. 305 (1869); Barrett supra, p. 387.

When all parties are non-residents, a court in the exercise of a guarded discretion may refuse to exercise jurisdiction, although it has what Justice Holmes called physical power over the parties. McDonald v. Mabee, 243 U.S. 90, 91, 37 S.Ct. 343, 61 L.Ed. 608. It may do this by considering the convenience to the parties and the court. Mr. Justice Jackson, in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055, wrote about such a fact situation and dismissed the action. In doing so he stated that the doctrine of forum non conveniens presupposes at least two forums in which the defendant is amenable to process. Accord, Koster v. (American) Lumbermens Mutual Cas. Co., 330 U.S. 518, 67 S.Ct. 828, 839, 91 L.Ed. 1067. In the Gilbert case, where the action was dismissed, the parties were non-residents of the forum. In Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212, decided a short time later, where dismissal was error, the parties were all residents of the forum. Currie, The Constitution and the 'Transitory' Cause of Action, 73 Harvard L.Rev. 36, 62, 76. The party connection with the forum, therefore, is significant, and was historically the primary consideration and basis for the court's application of the doctrine. 2 Harper & James, The Law of Torts, Sec. 30.1.

Forum non conveniens is recognized in Texas. Forcum-Dean Company v. Missouri Pacific Railroad Company, Tex.Civ.App., 341 S.W.2d 464. The early case of Morris v. Missouri Pac. Ry. Co., 78 Tex. 17, 14 S.W. 228, 9 L.R.A. 349, distinguished cases in which the contacts between the party and the forum were absent, from those in which the contacts were strong. In commenting upon transitory actions between non-residents, the Court there said, 'these facts would justify the court in refusing to entertain jurisdiction.' Mr. Justice Fly of this Court, also stated, in a case involving non-residents, '* * * had the district court, in the exercise of a sound discretion, refused to entertain jurisdiction of the case at all, this court would nto have felt called upon to review its action.' Southern Pac. Co. v. Graham, Tex.Civ.App., 34 S.W. 135; 21 C.J.S. Courts Sec. 77. This is the classic view which culminates in the Gilbert case, where Mr. Justice Jackson lists the criteria of public and private conveniences which a court may weigh in refusing jurisdiction. ¹

Some courts have declined jurisdiction if one of the parties is a non-resident. The question, however, is still the strength of the contact between the forum and the parties. Texas has stayed close to the original meaning of the doctrine, partywise. Texas has refused to dismiss upon principles of forum non conveniens when there is even a slight connection between the parties and the forum, as in cases where one of the parties is a resident of Texas, or is doing business in Texas, or has a permit to do business in Texas. Conques v. Louisiana Western Ry. Co., Tex.Civ.App., 295 S.W. 935, affirmed Tex.Com.App., 10 S.W.2d 975; St. Louis & S. F. Ry. Co. v. Hale, Tex.Civ.App., 153 S.W. 411, affirmed 109 Tex. 251, 206 S.W. 75; El Paso & S. W. Co. v. Chisholm, Tex.Civ.App., 180 S.W. 156; Southern Pacific Co. v. Allen, Tex.Civ.App., 106 S.W. 411; Southern Pacific Co. v. Craner, Tex.Civ.App., 101 S.W. 534, 535; Sorkin v. Houston, E. & W. T. Ry. Co., Tex.Civ.App., 53 S.W. 608; Western Union Telegraph Co. v. Phillips, Tex.Civ.App., 21 S.W. 638. Corporate contact with the forum has been sufficient if the corporation does business in or has a permit to do business in Texas. Allen v. Bass, Tex.Civ.App., 47 S.W.2d 426; Southern Pac. Co. v. Godfrey, Tex.Civ.App., 107 S.W. 1135; Missouri, K. & T. Ry. Co. of Texas v. Godair Commission Co., Tex.Civ.App., 87 S.W. 871; Missouri, K. & T. Ry. Co. of Texas v. Kellerman, Tex.Civ.App., 87 S.W. 401; Atchison, T. & S. F. Ry. Co. v. Keller, Tex.Civ.App., 76 S.W. 801; Southern Pacific Co. v. Graham, Tex.Civ.App., 34 S.W. 135; 48 A.L.R.2d 819, 824. In the case of private corporations, certain Texas statutes settle the matter of party contact. H. Rouw Co. v. Railway Exp. Angency, Tex.Civ.App., 154 S.W.2d 143; 20 Tex.L.Rev. 609. In contrast with the discretionary powers of the court in the pure forum non conveniens situation when all parties are non-residents, we can deduce this rule, which applies when either the plaintiff or defendant is a resident, 'a different problem is present as to both the power to refuse and the policy of refusing to entertain jurisdction than when neither party is a resident or a citizen.' 14 Am.Jur., Corts, Sec. 233; 48 A.L.R.2d 808; 62 A.L.R. 26; Blaustein v. Pan American Petroleum & Transport Co., 174 Misc. 601, 21 N.Y.S.2d 651, 706. Because the Texas Courts have held to the original meaning and application of the doctrine of forum non conveniens with respect to parties, some writers have looked to Texas cases where the contacts were stronger and where the doctrine was not historically applicable, and have erroneously concluded that Texas has rejected the rule entirely. Barrett, The Doctrine of Forum Non Conveniens, 35 Cal.L.Rev. 380, 388; 48 A.L.R.2d 811.

If a court concludes that the party contact is too thin to justify the court to exercise its jurisdiction, that is reason to dismiss the case. If, however, the party contact is sufficiently strong to justify the court to retain jurisdiction, the court will then look to the subject matter involved in the foreign tort and may still find reasons for a dismissal. If Texas has been slow to enlarge upon the original meaning of foreign non conveniens as applied to parties, it has been in the forefront in refusing jurisdiction based upon the strangeness of the foreign law. Since it is the foreign law which is applied in a transitory tort action, Texas has closed its courts to foreign cases when it deems the Texas judicial machinery inadequate to the nature of the foreign law. Mexican National Ry. Co. v. Jackson, 89 Tex. 107, 33 S.W. 815, 31 L.R.A. 276; Slater v. Mexican Nat. R. Co., 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900; El Paso & Juarez Traction Co. v. Carruth, Tex.Com.App., 255 S.W. 159; Carter v. Tillery, Tex.Civ.App., 257 S.W.2d 465; Johnson v. Employers Liability Assurance Corporation, Tex.Civ.App., 99 S.W.2d 979, 983. It will close its courts if it considers the foreign law offensive to the Texas public policy. State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 67...