Lansverk v. Studebaker-Packard Corp.

• Decision Date: 23 April 1959
• Docket Number: STUDEBAKER-PACKARD,No. 34977,34977
• Citation: 54 Wn.2d 124,338 P.2d 747
• Parties: Oscar C. LANSVERK and K. Marie Lansverk, husband and wife, Appellants, v.CORPORATION, a corporation, Respondent.
• Court: Washington Supreme Court

Page 124

54 Wn.2d 124

338 P.2d 747

Oscar C. LANSVERK and K. Marie Lansverk, husband and wife, Appellants, v. STUDEBAKER-PACKARD CORPORATION, a corporation, Respondent.

No. 34977.

Supreme Court of Washington, Department 1.

April 23, 1959.

Klein & Lansverk, Vancouver, for appellants.

McMullen, Snider & McMullen, Vancouver, for respondent.

HILL, Judge.

Quaere:

Is the doctrine of forum non conveniens available to a defendant in a transitory out of state tort action brought in a superior court of the state of Washington where the plaintiff is a nonresident of that state and the defendant is a foreign corporation doing business in and subject to the service of process in that state?

Answer: No.

Reason: Under the doctrine of forum non conveniens, although the court in which a transitory action is commenced has jurisdiction to hear and determine it, that court can, nonetheless, decline to exercise its jurisdiction and enter an order of dismissal because there is another forum available where trial will best serve the convenience of the parties and the ends of justice. Gore v. United States Steel Corp., 15 N.J. 301, 104 A.2d 670, 48 A.L.R.2d 841.

In the present case, the plaintiffs (residents of North Dakota) bring this action against the defendant (a foreign corporation), having its principal place of business in South Bend, Indiana, to recover for injuries sustained by the plaintiff wife by reason of a fall while visiting the defendant's plant in South Bend, Indiana, and for failure to property diagnose and treat the injury.

This is a transitory tort action, and the defendant is subject to suit in any state where it can be served with process; and it has been properly served with a summons and complaint in Clark county, Washington. The defendant moved for a dismissal on the ground of forum non conveniens. The trial court granted the motion, and the plaintiffs have appealed from the order of dismissal.

The state constitution vests in the superior court

'* * * original jurisdiction in all cases in equity and in all cases at law which involve [here follow references to certain types of litigation not here material] * * * and in all other cases in which the demand or the value of the property in controversy amounts to one thousand dollars, or a lesser sum in excess of the jurisdiction granted to justices of the peace and other inferior courts, * * * and for such special cases and proceedings as are not otherwise provided for. The superior court shall also have original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court; * * *.' Amendment 28 to Art. IV, § 6, of the state constitution.

RCW 2.08.010 is the statute implementing the foregoing constitutional provision.

RCW 4.12.025 provides that an action may be brought in any county in which the defendant resides, and the

'* * * residence of a corporation defendant [and this includes out of state corporations (RCW 4.12.026)] shall be deemed to be in any county where the corporation transacts business or has an office for the transaction of business or transacted business at the time the cause of action arose or where any person resides upon whom process may be served upon the corporation, unless hereinafter otherwise provided. * * *'

Service on the defendant in this case was made in Clark county upon its statutory resident agent for the service of process. See RCW 4.28.080(10), and 23.52.051. It is conceded that the Clark county superior court has jurisdiction to hear and determine the case. Our rules governing involuntary dismissals, apart from the failure to allege or prove jurisdictional facts, the failure to state or prove a cause of action, or the abatement of an action properly begun, are limited to those dealing with dismissals for want of prosecution. Rule 3, Pleading, Practice and Procedure, RCW Vol. O.

We find nothing in our constitution, our statutes, our rules, or our decisions that recognizes the existence of any discretion in the superior court of any county to decline to exercise the jurisdiction with which it is vested by the constitution and our statutes because of forum non conveniens. (There are statutes relating to a change of venue to another superior court within the state, which include a change for the convenience of witnesses or because the ends of justice would be forwarded. RCW 4.12.030(3). See also: RCW 4.12.027, 4.12.030, 4.12.040, 4.12.060, 4.12.070.) It must be remembered that we are not here concerned with a jurisdiction exercised to grant a change in venue or to transfer a case for trial, as in the Federal cases under 28 U.S.C. §§ 1404(a), and 1406(a), but with the refusal to exercise a conceded jurisdiction culminating, of necessity, in a dismissal.

We have recognized the possibility of a situation, which has not yet arisen, where we would refuse to exercise jurisdiction, and that is where to allow suit on a foreign cause of action would be contrary to a strong public policy of this state. Richardson v. Pacific Power & Light Co., 1941, 11 Wash.2d 288, 300, 118 P.2d 985; Reynolds v. Day, 1914, 79 Wash. 499, 140 P. 681, L.R.A.1916A, 432.

If the authority to decline to exercise jurisdiction on the grounds of forum non conveniens is an inherent power that all courts possess, it is, like atomic power, a matter of recent development. The doctrine begins, for all practical purposes, with an article by Paxton Blair, 'The Doctrine of Forum Non Conveniens in Anglo-American Law' (1929), 29 Columbia Law Review 1. The conclusion of the author was that, in the absence of statutory restriction, all American courts had inherent power to decline jurisdiction in transitory cases, if there existed a more convenient forum for the determination of the issues. By 1941, Mr. Justice Frankfurter could refer to the 'familiar doctrine of forum non conveniens' as being 'firmly imbedded in our law.' See dissenting opinion in Baltimore & Ohio R. Co. v. Kepner, 1941, 314 U.S. 44, 62 S.Ct. 6, 11, 86 L.Ed. 28.

The supreme court of the United States in State of Missouri ex rel. Southern Ry. Co. v. Mayfield, 1950, 340 U.S. 1, 71 S.Ct. 1, 2, 95 L.Ed. 3, said 'a State may reject, as it may accept, the doctrine [forum non conveniens] for all causes begun in its courts.'

The United States courts operate under a change of venue statute, 28 U.S.C. 1404(a), which permits a transfer to any other district where the action could have been brought 'For the convenience of parties and witnesses, in the interest of justice, * * *.' See also 28 U.S.C. 1406(a).

The following state courts have recognized and applied the doctrine of forum non conveniens: Arkansas (over strong dissent), California (over strong dissent), Illinois, Louisiana, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Oklahoma, and Utah (over strong dissent). (See note 1 in addendum to this opinion for case citations.)

The following states have declined to recognize the doctrine: Alabama, Missouri, Nebraska, Ohio, Texas, Wisconsin, and Washington. (See note 2 in addendum for case citations.)

We have heretofore been aligned by the annotators, et al., with the minority on the basis of a United States district court case (Smith v. Empire State-Idaho Mining & Development Co., 9 Cir., 1904, 127 F. 462), and our decision in Reynolds v. Day, supra. That case did not specifically touch upon the issue with which we are here concerned. The author of the Columbia Law Review article, to which we have referred, says that the plaintiff, an Idaho citizen, brought his action in the superior court of Spokane county, Washington, to recover for injuries caused by the negligence of the defendants (an Idaho partnership) while he was employed by them at their mine in Idaho. Neither the opinion nor the pleadings in the case says anything about the residence or citizenship of the plaintiff or of the defendants (or of their partnership). With these somewhat significant exceptions his factual statement is correct. The superior court sustained a demurrer on the ground that it had no jurisdiction. This court reversed, stating the familiar rule that an action for damages for personal injuries is transitory, and that though the injuries may have been sustained in some other state the action could be commenced in this state wherever service on a defendant may be had. We have cited the case on that point many times; most recently in Grant v. Pacific Gamble Robinson Co., 1944, 22 Wash.2d 65, 69, 70, 154 P.2d 301. We were principally concerned with the fact that if the injury had been sustained in this state, recovery would have been barred by our workmen's compensation act, RCW 51.04.010 et seq. We held that this did not prevent the courts of this state from applying the law of Idaho, and that in such a situation the right to recover is governed by the lex loci and not the lex fori. The closest that we came to the issues in the present case was our declaration that expense to taxpayers is not a valid objection to the indulgence of the principles of comity in actions for personal injuries arising in other states.

Judge Hanford had, ten years earlier (1904), held that 'positive provisions of law' and not the principles of comity would make it necessary for the courts of this state to exercise jurisdiction in such a case. Smith v. Empire State-Idaho Mining & Development Co., supra. In that case the widow and daughter of John Smith, citizens and residents of the state of Idaho, brought an action to recover damages for his death, which had occurred in the state of Idaho in a mine belonging to the defendant, a New York corporation which had an office and its principal place of business in Spokane, Washington. The action was commenced in the superior court of Spokane county, but was transferred to the United States district court on the basis of a diversity of citizenship. The challenge was to the jurisdiction of the...