Loftus v. Lee

• Decision Date: 13 January 1958
• Docket Number: No. 1,No. 46266,46266,1
• Citation: 308 S.W.2d 654
• Parties: Joseph B. LOFTUS, Appellant, v. Freda LEE, Respondent
• Court: Missouri Supreme Court

Page 654

308 S.W.2d 654

Joseph B. LOFTUS, Appellant, v. Freda LEE, Respondent.

No. 46266.

Supreme Court of Missouri, Division No. 1.

Jan. 13, 1958.

Ben W. Swofford, Robert A. Schroeder, Laurence R. Smith, Kansas City, Swofford, Schroeder & Shankland, Kansas City, of counsel, for appellant, Joseph B. Loftus.

Clyde J. Linde, Robert B. Langworthy, Billy S. Sparks, Kansas City, Langworthy, Matz & Linde, Kansas City, of counsel, for respondent.

Arthur F. Schmahlfeldt, Kansas City, Arthur C. Popham, Walter A. Raymond, Edgar J. Keating, Homer A. Cope, Vincent E. Baker, Samuel L. Trusty, Ernest Hubbell, amici curiae.

HOLLINGSWORTH, Presiding Judge.

Plaintiff, a resident of Kansas, sued defendant, also a resident of Kansas, in the Circuit Court of Jackson County, Missouri, to recover damages in the sum of $10,000 for personal injuries suffered in a collision of their automobiles in Kansas. The trial court sustained defendant's motion to dismiss on the ground of forum non conveniens. Plaintiff appealed. The questions for determination are (a) the availability of such a plea in this State, and, if available, (b) the propriety of the ruling under the facts.

The cause has been ably briefed not only by the parties but also by the Kansas City Bar Association as 'amicus curiae on the ground that the case involves an issue of great public interest and importance which vitally affects the interests and welfare of the people and the bar of this state, * * *.'

The cause is here upon the petition, the motion to dismiss and the judgment. The petition alleges that the collision occurred at the intersection of 78th and Lowell Streets in Johnson County, Kansas, as a direct result of defendant's negligence in certain particulars and that such negligence was the proximate cause of plaintiff's injuries. Defendant was personally served with summons in Jackson County, Missouri. Thereafter, defendant timely filed verified special entry of appearance and motion to dismiss on the sole ground of forum non conveniens. The motion alleged: Plaintiff is a citizen and resident of Wyandotte County, Kansas, which is adjacent to Johnson County, Kansas; defendant is a citizen and resident of Johnson County; the cause of action arose in Johnson County and all known witnesses reside there; plaintiff can file his suit in Johnson County and obtain personal service there; defendant's presence in Missouri at the time of service was occasioned by her attending business college; the only Missouri contacts with the action are that plaintiff retained Missouri attorneys and defendant is a student at a business school in Missouri; a trial of the cause can be had in Johnson County within six months and can not be had in Jackson County, Missouri, within eighteen months.

The verified allegations of defendant's motion were not denied and, for the purpose of the ruling of the trial court and this appeal, are admitted. Upon hearing, the motion was sustained, plaintiff's action was dismissed and defendant was awarded judgment for her costs.

Plaintiff's argument in this court is predicated upon four basic contentions of law:

(1) The trial court was without jurisdiction to grant defendant's motion to dismiss on grounds of forum non conveniens;

(2) If the trial court had the power to apply the doctrine of forum non conveniens, such doctrine should be rejected as against public policy;

(3) If this court should decide that the trial court had jurisdiction to rule the motion, the sustainment of it was an abuse of discretion; and

(4) The case of Elliott v. Johnston, 365 Mo. 881, 292 S.W.2d 589, upon which the trial court ruled the motion, is not controlling or authoritative in the instant case.

The Elliott case, supra, as the instant case, was a transitory action in tort arising out of a collision of automobiles in Kansas, one driven by plaintiffs' decedent and the other driven by defendant, all residents of Kansas. The opinion reviews the development of the doctrine of forum non conveniens in the United States and in Missouri. After consideration of numerous decisions of both the Supreme Court of Missouri and the Supreme Court of the United States and certain articles appearing in several Law Reviews, the opinion declares, 292 S.W.2d loc. cit. 593: 'The parties are all nonresidents, the actions or claims are upon a foreign transitory nonstatutory tort and the court had the inherent discretionary power to retain or to decline jurisdiction of these actions transplanted from their 'natural forum,' and the meritorious question is whether in the particular circumstances the forum is appropriate and whether the court abused its discretion. Annotation 32 A.L.R., l. c. 33-40; 35 Cal.L.R., l. c. 386, 402; 44 Har.L.R. 41; Gulf Oil Corporation v. Gilbert, supra [330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055]; Burt v. Isthmus Development Co., 5 Cir., 218 F.2d 353, 356.'

Plaintiff herein, however, sharply challenges the soundness of that ruling. His first contention is that the general venue statutes of Missouri, Sections 508.010 and 507.020, RSMo 1949, V.A.M.S., ¹ give him the right to sue in Missouri, and that Article IV, Sec. 2, and Sec. 1 of the XIV Amendment of the U. S. Constitution ² prohibit Missouri from closing its courts to him.

Plaintiff's admitted compliance with our general venue statutes unquestionably vested the Circuit Court of Jackson County with jurisdiction of the parties and the cause of action alleged in the petition. The law is clear, therefore, that a purely arbitrary dismissal of the action would be unconstitutional. See authorities collected in 35 California Law Review, 1947, pp. 389-390. However, as was held in Elliott v. Johnston, supra, 292 S.W.2d 589, 595, the dismissal of a suit predicated upon a rationalized distinction of privileges according to residence, as the administration of justice may require, does not run afoul of the federal constitutional clause here invoked by plaintiff. In Douglas v. New York, New Haven R. Co., 279 U.S. 377, 49 S.Ct. 355, 73 L.Ed. 747, the Supreme Court held constitutional a provision of the New York Civil Code under which actions by nonresidents against foreign corporations doing business in New York were subject to dismissal. Under the statute there in question, the term 'nonresident' was interpreted by the New York court to embrace citizens of New York who did not actually live in the state at the time the suit was brought. Mr. Justice Holmes, speaking for the court, said, 279 U.S. 377, 387, 49 S.Ct. 355, 356, 73 L.Ed. 747: 'A distinction of privileges according to residence may be based upon rational considerations and has been upheld by this Court, emphasizing the difference between citzenship and residence, in La Tourette v. McMaster, 248 U.S. 465, 39 S.Ct. 160, 63 L.Ed. 362.'

(The Douglas case, supra, was an action under the Federal Employers' Liability Act, the special venue provisions of which (45 U.S.C.A. Sec. 56) make questionable the constitutionality of any attempted application of the doctrine of forum non conveniens in F.E.L.A. cases under general venue statutes such as ours, unless we are also willing to extend application of the doctrine to citizens of Missouri who do not actually live within the State. In Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 505, 67 S.Ct. 839, 841, 91 L.Ed. 1055, the court said: 'It is true that in cases under the Federal Employers' Liability Act we have held that plaintiff's choice of a forum cannot be defeated on the basis of forum non conveniens. But this was because the special venue act under which those cases are brought was believed to require it. Baltimore & Ohio R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28; Miles v. Illinois Central R. Co., 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129. Those decisions do not purport to modify the doctrine as to other cases governed by the general venue statutes.' In the Miles case, supra, 315 U.S. loc. cit. 703-704, 62 S.Ct. loc. cit. 830, it was said: 'The opportunity to present causes of action arising under the F.E.L.A. in the state courts came, however, not from the state law but from the federal. By virtue of the Constitution, the courts of the several states must remain open to such litigants on the same basis that they are open to litigants with causes of action springing from a different source. This is so because the Federal Constitution makes the laws of the United States the supreme law of the land, binding on every citizen and every court and enforceable wherever jurisdiction is adequate for the purpose. * * * To deny citizens from other states, suitors under F.E.L.A., access to its courts would, if it permitted access to its own citizens, violate the Privileges and Immunities Clause.' Consequently, our opinion herein, as did the opinion in Elliott v. Johnston, supra, 292 S.W.2d 589, excludes consideration of the doctrine of forum non conveniens in F.E.L.A. cases. See also State of Missouri ex rel. Southern Ry. Co. v. Mayfield, 340 U.S. 1, 71 S.Ct. 1, 95 L.Ed. 3, and State ex rel. Southern Ry. Co. v. Mayfield, 1951, 362 Mo. 101, 240 S.W.2d 106.)

But the Gulf Oil case, supra, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055, definitely refutes and requires denial of plaintiff's contention of the federal unconstitutionality of the application of the doctrine of forum non conveniens in suits between nonresidents in tort actions (other than F.E.L.A. cases) arising beyond the borders of this State. In that case, a resident of Virginia brought an action in a federal district court in New York City against a Pennsylvania corporation qualified to do business in both Virginia and New York (where it had designated agents to receive service of process), to recover damages for destruction of plaintiff's public warehouse and its contents in Virginia by fire resulting from defendant's negligence. The federal court had jurisdiction (based solely on diversity of citizenship--the merits involved no federal question) and...