Melton v. Illinois Cent. Gulf R. Co.

• Decision Date: 06 December 1988
• Docket Number: No. 53830,53830
• Citation: 763 S.W.2d 321
• Parties: Robert MELTON, Plaintiff-Respondent, v. ILLINOIS CENTRAL GULF RAILROAD CO., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 321

763 S.W.2d 321

Robert MELTON, Plaintiff-Respondent, v. ILLINOIS CENTRAL GULF RAILROAD CO., Defendant-Appellant.

No. 53830.

Missouri Court of Appeals,

Eastern District,

Division Four.

Dec. 6, 1988.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 4, 1989.

Application to Transfer Denied

Feb. 14, 1989.

Frank N. Gundlach, Ann E. Buckley, St. Louis, for defendant-appellant.

Don B. Sommers, Prudence W. Kramer, St. Louis, for plaintiff-respondent.

STEPHAN, Judge.

Illinois Central Gulf Railroad Company ("Railroad") appeals from the judgment entered in favor of respondent Robert Melton for injuries he sustained during his employment as a railroad engineer. Melton brought his action against Railroad under the Federal Employers' Liability Act of 1908, 45 U.S.C. § 51-60 (1982) ("FELA"). The jury returned a verdict in favor of Melton for $575,000.00 upon which the judgment appealed from was entered. We affirm the judgment of the trial court.

The accident occurred on July 26, 1985, at the Boothby siding between Benton and Rust in southwest Illinois about one hundred miles from St. Louis. Three teenagers had broken a lock and tampered with a switch diverting the railroad tracks from the main track to a single track alongside. They also bent the "target" sign at the switch with the result that someone on an approaching train could not tell that the switch was not lined for the main track. Melton, a fifty-six year old engineer for Railroad, was running a train down the main line where the vandalism had occurred when the train ran off the main line onto the side track. The crew jumped out the rear of the locomotive onto the main track to escape collision with train cars parked on the single siding. Melton broke his left wrist and left ankle, bruised both knees, and injured his right hand.

Railroad seeks reversal of the judgment on the following grounds of alleged trial court error: first, failure to dismiss the action for forum non conveniens; second, submitting the action absent evidence of any negligence by Railroad or of foreseeability by it of the acts of vandalism; and third, refusing to allow Railroad's offer of proof that Melton had received disability payment under the Railroad Retirement Act of 1937, 45 U.S.C. § 231 (1982), entitling Railroad to a setoff of those contributions made to the fund by Railroad in Melton's behalf against the jury award to Melton.

The first issue raised by Railroad is whether the trial court abused its discretion in refusing to grant Railroad's motion to dismiss Melton's action on the grounds of forum non conveniens. In State ex rel. Chicago, Rock Island and Pacific Railroad v. Riederer, 454 S.W.2d 36, 39 (Mo. banc 1970), our supreme court listed the following six factors for consideration of the applicability of the doctrine of forum non conveniens: 1) place of accrual of the cause of action; 2) location of witnesses; 3) the residence of the parties; 4) any nexus with the place of suit; 5) the public factor of the convenience to and burden upon the court; and 6) the availability to plaintiff of another court with jurisdiction of the cause of action which affords him a forum for his remedy.

Our supreme court more recently observed in Besse v. Missouri Pacific Railroad, 721 S.W.2d 740 (Mo. banc 1986), cert. denied 481 U.S. 1016, 107 S.Ct. 1894, 95 L.Ed.2d 501 (1987), while the plaintiff may initially select the forum by filing suit in any venue allowed by law, a suit is subject to dismissal if it is filed in a forum which is manifestly inconvenient. 721 S.W.2d at 742. The supreme court iterated the six factors set out in Riederer and commented that their consideration necessarily involves a weighing of those factors, so that the decision is one largely committed to the trial court's discretion. Besse, 721 S.W.2d at 741-42. In the exercise of that discretion, cases having no tangible relationship to Missouri should be dismissed. Id.

Keeping in mind the factors enumerated in Riederer, Railroad emphasizes that the accident occurred at Boothby siding in Franklin County, Illinois, approximately one hundred miles from St. Louis; that Melton resided in Centralia, Illinois, about sixty-eight miles from St. Louis; that Railroad's home office is in Chicago, Illinois; that the three teenagers who broke the lock and threw the switch causing the accident live in or near Benton, Illinois, and could not be subpoenaed or joined as third party defendants in St. Louis, Missouri; that Melton's treating physician maintained his office in Centralia, Illinois; and that all the fact witnesses lived in Illinois.

Railroad asserts that the only connections to the City of St. Louis are that Melton's attorney has an office in St. Louis and that, at the time suit was filed, Railroad owned and operated trains that periodically came into St. Louis. Railroad acknowledges, however, that both Melton's and Railroad's examining physicians who testified at trial maintained their offices in St. Louis County, as did Railroad's expert witness, an accountant.

In oral argument, Railroad conceded that no record was made concerning the anticipated time to get to trial. We note the court minutes in the legal file reflect the case was tried approximately one year after Railroad was served. From this, we surmise that the public factor of the convenience to and burden upon the court, the fifth factor listed in Riederer, had little consequence here.

Finally, Railroad mentions that the more convenient forum was in Illinois, either in Centralia where Melton lived or in Benton where the accident occurred. Railroad reasons that, had the action been brought in either Centralia or Benton, Railroad could have subpoenaed or impleaded the three teenagers whose vandalism occasioned the accident.

Our review of the factors outlined by Railroad dispels any finding that the trial court abused its discretion in refusing to dismiss Melton's action for forum non conveniens. Nothing in the record compels our conclusion that Melton filed his action in a forum which is "manifestly inconvenient". Besse, 721 S.W.2d at 742. Travel on the part of interested persons would have been required wherever the action was brought. The witnesses, the site of the accident, and the residence of parties and of treating and examining physicians were all scattered. Of the witnesses called by Railroad, only three testified by deposition; the rest appeared for trial in person. Railroad demonstrated no inability to secure the presence of witnesses to testify at trial in its behalf.

The crux of Railroad's claim of forum non conveniens is that Railroad was prejudiced by its inability to either subpoena or implead as third party defendants the three teenagers who had vandalized the Railroad's equipment. Although Railroad read into evidence the depositions of these three boys at trial, it deprecates this testimony as much less satisfactory than their live testimony.

We are well aware of the differences occasioned by the use of depositions rather than testimony in person. Nonetheless, having witnesses testify at trial by deposition remains an approved alternative. For example, the use of depositions has become prevalent to preserve the testimony of medical experts. Indeed, Melton himself relied on the deposition testimony of one of his own medical experts, his treating physician, illustrating how widespread the practice is.

We have reviewed the deposition testimony by the three miscreants. The boys freely admitted they had vandalized the switch prior to the accident. With no dispute over their culpability, we are at a loss to discern from the record what prejudice Railroad suffered because such testimony was presented by deposition and not live. Moreover, the record fails to disclose what attempts, if any, Railroad took to secure these boys' presence at trial and whether its efforts to do so had been thwarted.

A troubling aspect concerning these three witnesses is Railroad's assertion that they could not be impleaded as third party defendants. Melton responds this claim is not significant because Railroad probably would be unable to collect any judgment entered against the three youths. When their depositions were taken in April 1987 nearly two years after the accident occurred and several months before the trial in September 1987, the boys were fifteen years old and sophomores in high school. None testified to having a job. Despite their relative youth and possible lack of employment, we consider Melton's argument of their financial insolvency highly speculative.

While we are unswayed by Melton's argument, we do not believe Railroad's inability to implead these three youths as third party defendants requires our finding plaintiff's chosen forum to be inconvenient. Railroad can pursue its right of contribution, if any, against these three in Illinois. Nothing in the record suggests that Railroad is precluded from initiating its own action in Illinois against them. We have unearthed no Missouri case mandating the dismissal of an action for forum non conveniens because of a defendant's inability to implead other persons as third party defendants. We conclude that, after our review of the six factors enunciated in Riederer and Besse in the context of this case, the trial court did not abuse its discretion in not granting Railroad's motion to dismiss Melton's action on the ground of forum non conveniens.

Railroad's second point states Melton failed to make a submissible case. Railroad argues the uncontroverted evidence established that the teenagers whose vandalism caused the accident were not railroad employees and no evidence existed that Railroad should have foreseen the acts of vandalism or that Railroad was even slightly negligent in producing Melton's injury. Railroad emphasizes that liability should not be foisted upon it merely because Melton sustained injuries from an on-the-job accident. Absent any evidence of foreseeability,...