Frye v. Ross Aviation, Inc.
| Decision Date | 07 April 1975 |
| Docket Number | No. 8490,8490 |
| Citation | 523 S.W.2d 500 |
| Parties | Carol Ann FRYE, Individually, and as next friend of Judith Ann Frye, a minor, et al., Appellants, v. ROSS AVIATION, INC., a corp., Appellee. |
| Court | Texas Court of Appeals |
Kolander, Templeton & Hamilton, Robert L. Templeton, Amarillo, for appellants.
Stokes, Carnahan & Fields, O. P. Fields, Jr., Amarillo, for appellee.
From an order of dismissal on the theory of forum non conveniens, plaintiffs appeal. Modified to dismiss for want of jurisdiction, and affirmed as modified.
William Paul Frye was killed on May 19, 1972 when the Ross Aviation aircraft in which he was a passenger crashed at the Albuquerque, New Mexico, Airport shortly after take-off on a scheduled intrastate flight from Albuquerque terminating in Los Alamos, New Mexico. His widow, Carol Ann Frye, individually and as next friend for their children, and his mother, Peggy Frye who had qualified as administratrix of his estate in Randall County, brought this suit against Ross Aviation, Inc. and Beech Aircraft Corporation to recover damages for William Paul Frye's death. Decedent was a resident of New Mexico. Plaintiffs alleged by their petition that decedent's wife and minor children are residents of New Mexico and that decedent's mother is a resident of Amarillo, Texas.
Ross Aviation, Inc. filed a special appearance contesting the jurisdiction of the court and subject to its special appearance, a motion to dismiss on the theory of forum non conveniens. At the hearing plaintiffs' counsel testified without objection that, subsequent to the filing of the petition, and prior to the hearing, decedent's wife and children had moved to Amarillo, Texas. Defendant Ross Aviation offered in evidence the portion of plaintiffs' petition whereby plaintiffs alleged as follows:
The trial court overruled the motion to dismiss for want of jurisdiction, but sustained Ross Aviation's plea of forum non conveniens, severed the case against Beech, and dismissed plaintiffs' case against Ross Aviation, Inc. Plaintiffs appealed, contending that the trial court erred in finding that the doctrine of forum non conveniens applies under the facts adduced by the defendant and further that under the provisions of Article 4678, Vernon's Ann.Civ.St., the trial court had no discretion, but was required to try the case once it found it had jurisdiction.
Defendant Ross contends by cross point that regardless of the application of the doctrine of forum non conveniens, the judgment of dismissal is correct because the courts of Texas lack in personam jurisdiction over Ross Aviation, Inc., in this case.
We first consider the question of jurisdiction. Ross Aviation, Inc., is a Delaware Corporation. It does not have a permit to do business in Texas. The principal business of Ross Aviation, Inc., is the performance of a contract with the Atomic Energy Commission under which Ross Aviation provides air transportation for A.E.C. personnel and cargo. The operation is conducted out of Albuquerque, New Mexico. The contract was made in New Mexico with the A.E.C. office in Albuquerque. There were no negotiations concerning the contract in the State of Texas. Ross aircraft come into Texas on an unscheduled basis and only when dispatched under A.E.C. orders. Such flights are frequent, averaging about one every other day. Ross Aviation does not own or lease any property in Texas. It does not have an office in Texas and has no personnel, employees, officers, agents or other people employed in or residing in the State of Texas. Ross does not solicit business in Texas.
There is no connection between any flight into Texas and the aircraft accident that caused Frye's death. The crash occurred in New Mexico and the witnesses to the crash as well as Ross's pilots and maintenance people who have information material to the case live in New Mexico. Louis Pierce, a Vice President of Ross Aviation, testified that bringing the employees with relevant information to Amarillo for a trial would bring their operation to a virtual standstill.
The standard to be applied in determining whether a Texas court can maintain jurisdiction over a...
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