Gonzales v. Atchison T. & S. F. Ry. Co.

• Decision Date: 05 May 1962
• Docket Number: No. 42738,42738
• Citation: 189 Kan. 689,371 P.2d 193
• Parties: Thomas GONZALES, Administrator of the Estate of Emillo Perez, Deceased, Appellant, v. The ATCHISON TOPEKA AND SANTA FE RAILWAY COMPANY, a Corporation, Appellee.
• Court: Kansas Supreme Court

Page 193

371 P.2d 193

189 Kan. 689

Thomas GONZALES, Administrator of the Estate of Emillo Perez, Deceased, Appellant, v. The ATCHISON TOPEKA AND SANTA FE RAILWAY COMPANY, a Corporation, Appellee.

No. 42738.

Supreme Court of Kansas.

May 5, 1962.

Syllabus by the Court

1. In an action for wrongful death under the Federal Employers' Liability Act filed in the district court of Sedgwick County, Kansas, against the Santa Fe Railway Company, a domestic corporation, the trial court upon hearing a motion to dismiss under the doctrine of forum non conveniens found that a more convenient forum was afforded in the state of Colorado, as more particularly set forth in the opinion. Thereupon the trial court sustained the motion to dismiss, and on appeal it is held: The doctrine of forum non conveniens is recognized in Kansas, and the trial court did not abuse the exercise of its power of discretion in dismissing the action without prejudice.

2. The doctrine of forum non conveniens is an equitable doctrine whereby the trial court may, in its discretion, decline the jurisdiction of a case under certain circumstances, even though it has proper jurisdiction over all parties and the subject matter involved.

3. The trial courts of this state have the inherent power to dismiss a transitory cause of action under the doctrine of forum non conveniens, where facts and circumstances call for its application. The doctrine is a part of the common law of the state of Kansas.

4. The inherent power of a trial court to dismiss a transitory cause of action under the doctrine of forum non conveniens is a discretionary power, which should be exercised only in exceptional circumstances, and when an adequate showing has been made that the interests of justice require a trial in a more convenient forum. There being no statutory criteria in Kansas to guide a court in the exercise of this power, the view of the United States Supreme Court expressed in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055, is adopted. The place of corporate domicile, even though domestic, is a factor entitled to consideration, but does not preclude dismissal of a transitory cause of action under the doctrine of forum non conveniens, which resists formalization and looks to the realities that make for doing justice. In any event an action should not be dismissed under the doctrine unless an alternative forum is available to the plaintiff.

5. State courts are free to adopt the doctrine of forum non conveniens and apply it to a transitory cause of action under the Federal Employers' Liability Act in accordance with state law.

R. R. Barnes, Wichita, argued the cause, David A. Gushurst, LaJunta, Colo., Payne H. Ratner, Louise Mattox, Payne H. Ratner, Jr., Cliff W. Ratner, Edmund R. Learned, James R. Barr and Frank W. Hylton, Wichita, were with him on the brief for appellant.

W. E. Treadway, of Topeka, argued the cause, Charles W. Harris, Wichita, C. J. Putt and J. B. Reeves, Topeka, were with him on the brief for appellee.

SCHROEDER, Justice.

This is an action for wrongful death brought by the plaintiff administrator pursuant to the Federal Employers' Liability Act (45 U.S.C.A. § 51 et seq.) in the district court of Sedgwick County, Kansas, as authorized by G.S.1949, 59-1707 and 59-1708.

The plaintiff's decedent, Emilio Perez, a resident of Otero County, Colorado, while in the course of his employment by the defendant railroad met his death as a result of an automobile collision occurring near Las Animas in Bent County, Colorado.

Service of process was obtained upon the defendant's freight agent residing in Sedgwick County, Kansas. Without otherwise pleading to the petition, the defendant, The Atchison Topeka and Santa Fe Railway Company, promptly filed its verified motion to dismiss the action under the doctrine of forum non conveniens. This motion was sustained by the trial court after hearing, and appeal has been duly perfected from this order.

The questions presented are whether the doctrine of forum non conveniens is recognized in Kansas, and if so whether it is applicable to the facts in this case.

In support of the appellee's motion to dismiss under the doctrine of forum non conveniens ten specific reasons based upon facts fully stated therein were set forth. The facts alleged in the motion were supported by affidavits. The trial court found in favor of the appellee upon all of the points enumerated. Its journal entry of dismissal reads in pertinent part:

'Thereafter, on the 20th day of July, 1961, the Court finds that all material witnesses to the accident as well as plaintiff in this action are residents of the State of Colorado; that there are no known witnesses residing in Sedgwick County, Kansas, or in the State of Kansas; that the known witnesses are not amenable to compulsory process by this Court; that the purported cause of action arose from a motor vehicle accident which is alleged to have occurred in Bent County, Colorado, and no part of the purported cause of action arose in Sedgwick County, Kansas, or in the State of Kansas; that the defendant is amenable to service of process in both the County of Bent, Colorado where the accident occurred and in the County of Otero, Colorado; that the courts of Colorado in each of those counties are available to plaintiff for prompt hearing and determination of the claim asserted; that the trial of this case, as well as the five companion cases impose a substantial burden of jury service upon this community when it has no substantial connection with the cause of action; that the petition invokes Colorado Statutes and law; that the trial of this and the other actions in the District Court of Sedgwick County, Kansas would add to the present congestion of its trial docket, delay the trial of cases properly trialable in this Court, and constitute an unnecessary and undue burden and expense to the defendant; and that all the undisputed facts and circumstances of this case, and the five companion cases, present a proper case for the application of the doctrine of forum non conveniens.

'This Court, exercising its judicial discretion, determines that these actions should be dismissed without prejudice to the plaintiff's right to file same in the more convenient forum afforded in the State of Colorado. It is so ordered, adjudged and decreed.'

The doctrine of forum non conveniens is of ancient common law origin and has been recognized and applied in the federal courts and in the courts of most of the states. It is based upon broad considerations of convenience, justice, public policy, and due regard for the rights of citizens. Simply stated the rule is that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. (Gulf Oil Corp. v. Gilbert, [1947], 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055.)

In Plum, Appellant v. Tampax, Inc., [1960], 399 Pa. 553, 160 A.2d 549, the Pennsylvania Supreme Court said:

'* * * It is well within the power of the court, in the interests of justice, to decline to exercise its jurisdiction where, upon consideration of the parties, the witnesses, the situs of the cause of action and other kindred reasons, the litigation can more appropriately be conducted in another forum. * * * Whether a suit should be dismissed under the doctrine of Forum Non Conveniens will depend largely upon the particular facts and upon the discretion of the trial court. Such exercise of discretion will be overruled on appeal only when abused.' (p. 560, 160 A.2d p. 552.)

The Illinois Supreme Court described the doctrine in Atchison T. & S. F. Ry. Co. v. Clark, [1957], 12 Ill.2d 515, 147 N.E.2d 89, in the following language:

'The doctrine of forum non conveniens has been described as an equitable doctrine whereby 'the trial court may, in its discretion, decline the jurisdiction of the case,' under certain circumstances, 'even though it may have proper jurisdiction over all parties and the subject matter involved.' * * * Therefore, a motion to dismiss based on forum non conveniens raises an issue which necessitates an exercise of discretion by the trial judge in ruling thereon. * * *' (p. 520, 147 N.E.2d p. 93.)

The United States Supreme Court in Gulf Oil Corp. v. Gilbert, supra, elucidated upon the doctrine in the following language:

'* * * In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them.

'II.

'The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. These statutes are drawn with a necessary generality and usually give a plaintiff a choice of courts, so that he may be quite sure of some place in which to pursue his remedy. But the open door may admit those who seek not simply justice but perhaps justice blended with some harassment. A plaintiff sometimes is under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself.

'* * * But the problem is a very old one affecting the administration of the courts as well as the rights of litigants, and both in England and in this country the common law worked out techniques and criteria for dealing with it.

'Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to which plaintiff resorts, and experience has not shown a judicial tendency to renounce one's own jurisdiction so strong as to result in many abuses.

'If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An...