Hill v. Upper Mississippi Towing Corp.

• Decision Date: 11 April 1958
• Docket Number: No. 37297,37297
• Citation: 252 Minn. 165,89 N.W.2d 654
• Parties: Nolie Lee HILL, Appellant, v. UPPER MISSISSIPPI TOWING CORPORATION, Respondent.
• Court: Minnesota Supreme Court

Page 654

89 N.W.2d 654

252 Minn. 165

Nolie Lee HILL, Appellant, v. UPPER MISSISSIPPI TOWING CORPORATION, Respondent.

No. 37297.

Supreme Court of Minnesota.

April 11, 1958.

Syllabus by the Court.

The doctrine of forum non conveniens presupposes at least two forums in which the defendant is amenable to involuntary process at the time the suit is started.

Clifford W. Gardner, St. Paul, for appellant.

Lord, Bissell & Brook, Edward B. Hayes, Chicago, Ill., Faegre & Benson, Wright W. Brooks, Minneapolis, for respondent.

MURPHY, Justice.

This is an appeal from a judgment of dismissal entered in the District Court of Hennepin County pursuant to an order dismissing the action without prejudice and without costs to either party.

The plaintiff claims to have suffered personal injuries while employed by the defendant company as a deckhand on one of its vessels. The injuries are alleged to have resulted from the accumulative effects of excessive chemical fumes to which the plaintiff was exposed during the course of his employment. The injuries from which the plaintiff is alleged to have lost the sight of one eye occurred during the months of June, July, and August 1955 while the vessel on which he worked was in transit between New Orleans and St. Louis on the Mississippi River. It cannot be said that the place where the injuries occurred was in any particular jurisdiction.

The plaintiff is a resident of the State of Mississippi. The defendant is a Minnesota corporation having its office and principal place of business in the city of Minneapolis. It owns and operates barges and towing vessels engaged in commerce and navigation on the waters of the Mississippi River. It appears that its officers who direct and manage the business are residents of the State of Minnesota. With the exception of its barges and vessels which move on the Mississippi River, the property of defendant is permanently located in Minnesota. The defendant has no property, agent, or office in the State of Mississippi, where the plaintiff has his home, nor in the State of Tennessee, the district to which the defendant seeks to transfer this case. Although the vessels of the defendant company may on occasion stop at the port of Memphis, it has no dockage rights at that port.

It appears that plaintiff was treated for his injuries in the United States Public Health Service Hospital in Memphis, Tennessee. Although defendant is not a resident of the State of Tennessee and not doing business that so as to be amenable to suit in that jurisdiction, it is defendant's claim that, because the hospital records are located in Tennessee and because that jurisdiction is more convenient and would require less time for travel for the witnesses who might be expected to testify, the action should be tried there.

Plaintiff originally instituted an action in the United States District Court for the district of Minnesota. In that action the court granted the defendant's motion, pursuant to 62 Stat. 937, 28 U.S.C.A. § 1404(a), for an order transferring the case from the United States District Court of Minnesota to the district of Tennessee. ¹ Thereafter the plaintiff dismissed the action in United States District Court and started this action in state court. It should be noted that defendant cannot claim forum shopping here, nor can it be said that the bringing of the action in Minnesota constitutes harassment of the defendant. Minnesota is the only district in which the defendant could have been subjected to involuntary service.

The plaintiff seeks damages under the so-called Jones Act (41 Stat. 1007, 46 U.S.C.A. § 688) which provides:

'Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; * * *.'

The defendant in its answer denied liability and alleged that the district of Minnesota was an inconvenient forum and asked that the court decline jurisdiction for the reason that the United States District Court had by judgment entered an order transferring the action to the jurisdiction of Tennessee. The answer further set out allegations of fact in support of its claim that Minnesota is not a convenient or proper district for trial of the action.

Plaintiff thereafter moved for an order striking from the answer the defense of forum non conveniens. The defendant moved, on the basis of that defense, for an order dismissing the complaint. In disposing of these motions the trial court (1) denied the plaintiff's motion to strike and (2) granted the defendant's motion to dismiss without prejudice and without costs upon certain conditions. The order dismissing the action was conditioned upon the defendant submitting to in personam jurisdiction in Tennessee; waiving the defense of forum non conveniens; and consenting to a trial by jury in the particular court of Tennessee selected by the plaintiff. The order further provided that, if the defendant failed to comply with the conditions specified, or if the Tennessee court in which the plaintiff brought the action declined to exercise jurisdiction, then, upon proper application and showing by the plaintiff, the original action would be reinstated with the same force and effect as if it had never been dismissed. The defendant has agreed to comply with the conditions set forth in the court's order. It is from the judgment entered on this order that the plaintiff appeals.

It has long been recognized that before the doctrine of forum non conveniens may be invoked it must appear that the plaintiff has a choice of two forums in which to subject the defendant to process. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506, 67 S.Ct. 839, 842, 91 L.Ed. 1055, 1061; Gore v. United States Steel Corp., 15 N.J. 301, 104 A.2d 670, 48 A.L.R.2d 841. There can be no serious dispute here that when the action was started there was only one jurisdiction in which the defendant was amenable to process and that was in the district of Minnesota. The defendant contends, however, that by consenting to be sued in the jurisdiction of Tennessee the two-forum requirement was supplied. The narrow question before us then is whether a district court of this state may apply the doctrine of forum non conveniens upon the defendant's offer to submit to in personam jurisdiction in the more convenient forum, where Minnesota is the only forum in which the plaintiff can obtain in personam jurisdiction by involuntary service of process.

In preface to the discussion which follows it should be noted that the plaintiff is properly before the courts of Minnesota. ² In Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382, it was held that the Jones Act expressly provides for seamen a cause of action together with the entire judicially developed doctrine of liability granted to railroad workers under Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Moreover, the plaintiff was within his rights under Rule 41(a) of Federal Rules of Civil Procedure, 28 U.S.C.A., in voluntarily dismissing the suit in Federal court and instituting this action in state court. Littman v. Bache & Co., 2 Cir., 252 F.2d 479.

Having properly instituted the action in state district court, in the county of defendant's residence, the statutory prohibition of removal of actions instituted in state court under F.E.L.A. applies to suits under the Jones Act so this action may not be removed to the Federal Court. 62 Stat. 939, 28 U.S.C.A. § 1445; 35 Am.Jur., Master and Servant, § 463; Loftus v. Delaware & H.R. Corp., D.C.M.D.Pa., 122 F.Supp. 829; McKee v. Merritt-Chapman & Scott Corp., D.C.N.D.Ill., 144 F.Supp. 423; Moe v. Eagle Ocean Transp. Co., D.C.S.D.Tex., 91 F.Supp. 910. It is apparent from these authorities that Congress intended the state courts to share the burden of litigation necessarily attendant upon the administration of these acts.

While the judgment in this action has been referred to as a dismissal without prejudice, it is in effect an interlocutory decree by which the proceedings in this jurisdiction are stayed pending the outcome of the action in a foreign jurisdiction. While this kind of a judgment, which in effect transfers an action to a separate court under a separate sovereignty, is unknown to our practice and is without authority either in our constitutional, statutory, or decisional law, ³ the action of the trial court is not without precedent. Certain trial courts, in the interests of expediency and a practical disposition of venue and jurisdictional problems with which they were presented, have adopted the device of a conditional dismissal similar to the one we have here and apparently have done so on the theory that a court has inherent power to dismiss or stay actions on equitable grounds presented by the moving party. See, Ivy v. Stoddard, Sup., 147 N.Y.S.2d 469; Wendel v. Hoffman, 258 App.Div. 1084, 259 App.Div. 732, 18 N.Y.S.2d 96; Vargas v. A. H. Bull Steamship Co., 44 N.J.Super. 536, 131 A.2d 39. None of these cases have met the test of appellate review in the jurisdictions from which they come. As to the jurisdiction of the State of New York, it should be noted that in Vigil v. Cayuga Const. Corp., 185 Misc. 675, 54 N.Y.S.2d 94, affirmed, 269 App.Div. 934, 58 N.Y.S.2d 343, the bald assertion is made that the plea of forum non conveniens cannot be presented by a resident of the forum, and as recently as February 18, 1958, ⁴ the appellate division of the New York courts has by way of dicta reaffirmed their previous statement in de la Bouillerie v. de Vienne, 300 N.Y. 60, 62, 89 N.E.2d 15, 48 A.L.R.2d 798, to the effect that:

'Our courts are bound to try action for a foreign tort when either the plaintiff or the defendant is a resident of this State. Crashley...