Mims v. Proctor and Gamble Distributing Company

• Decision Date: 01 September 1966
• Docket Number: Civ. A. No. 66-276,66-278.
• Citation: 257 F. Supp. 648
• Parties: Harold L. MIMS, as the Executor of the Estate of Clifton V. Mimms, deceased, Plaintiff, v. PROCTOR AND GAMBLE DISTRIBUTING COMPANY, Defendant. Harold L. MIMS, Plaintiff, v. PROCTOR AND GAMBLE DISTRIBUTING COMPANY, Defendant.
• Court: U.S. District Court — District of South Carolina

257 F. Supp. 648

Harold L. MIMS, as the Executor of the Estate of Clifton V. Mimms, deceased, Plaintiff, v. PROCTOR AND GAMBLE DISTRIBUTING COMPANY, Defendant.

Harold L. MIMS, Plaintiff, v. PROCTOR AND GAMBLE DISTRIBUTING COMPANY, Defendant.

Civ. A. Nos. 66-276, 66-278.

United States District Court D. South Carolina, Columbia Division.

September 1, 1966.

John C. West, Kenneth L. Holland and H. W. C. Furman, Camden, S. C., for plaintiff.

Claude M. Scarborough, Jr., of Nelson, Mullins, Grier & Scarborough, Columbia, S. C., for defendant.

HEMPHILL, District Judge.

Defendant asks this court to transfer companion cases from the District Court of South Carolina to the United States District Court for the Eastern District of Tennessee, generally for the convenience of parties and witnesses, and in the interest of justice, and especially on twelve grounds subheaded and paragraphed in the motion. It seeks application of the doctrine of forum non conveniens under the provisions of 28 U.S.C. § 1404(a).¹ Plaintiffs resist, each insisting on (the) right to choose the forum within the limits of the Federal Venue statutes,² particularly 28 U.S.C. § 1391(c) which provides:

A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.

There is no dispute as to defendant's corporate capacity, domestication, licensing and other requisites of doing business such as to qualify South Carolina as its "residence" for the purposes here.

These actions seek damages for the wrongful death of Clifton V. Mimms and Elizabeth S. Mimms. The Clifton V. Mimms action was instituted in the Court of Common Pleas for Kershaw County on March 21, 1966, and was subsequently removed to this court. The Elizabeth S. Mimms action was instituted on April 13, 1966, in this court. These actions arise out of an automobile accident which occurred on November 15, 1965, on U. S. Highway No. 61, approximately six miles west of Chattanooga, Tennessee. Clifton V. Mimms, his wife Elizabeth S. Mimms, and James Allen Neely, the alleged agent and servant of the defendant, were all killed in this accident. Elizabeth S. Mimms predeceased her husband by several hours. All persons involved in this accident were treated at the Newell Hospital in Chattanooga, Tennessee. The Mimms were residents of the District of Columbia or South Carolina, or both, at the time of the accident. Harold L. Mims, the Executor of the Estate of Clifton V. Mimms, is a resident of the State of South Carolina. The deceaseds had no children, but were survived by a family, consisting, among others of Harold L. Mims, the plaintiff, Leon H. Mims, Hershel N. Mims, Belton Mims, and Mrs. Hazel Mims Harmon, "all of whom will testify as to the decedents' earnings, ages and the family loss in connection with their deaths."³

Defendant, in its motion(s) lists for special considerations, the following, which the court finds to be true:

(a) The plaintiff, although a resident of the State of South Carolina, is acting in his representative capacity as Executor of the Estate of Clifton V. Mimms, Deceased, having been so appointed, upon information and belief, by Order of a Court in the District of Columbia, in which jurisdiction Clifton V. Mimms was a resident at the time of his death.

(b) The injury set forth in the Complaint herein is alleged to have occurred in the State of Tennessee, and the defendant would show that it occurred in the Chattanooga area of said state, and the plaintiff's claim did not arise out of, or have any connection with, any business transacted by the defendant in this state and district;

(c) The defendant is a foreign corporation, with its principal place of business in the City of Cincinnati, Ohio, in which state it is a citizen, but the said defendant also does business in the State of Tennessee and this action could have been brought by the plaintiff in the United States District Court for the Eastern District of Tennessee, Southern Division.

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(e) The expense of bringing in witnesses to the City of Columbia, South Carolina, for the trial of this action, from the State of Tennessee, if the witnesses are willing to come, will be great and will entail loss of time on the part of said witnesses.

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(j) On the trial of this action, it will be necessary for this court to interpret a number of applicable ordinances or statutes of the State of Tennessee and court decisions of said state, and this can much more readily or easily be accomplished if the venue of this action is transferred to the United States District Court in the State of Tennessee.

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(l) Upon information and belief, the plaintiff's testator died several hours after the collision out of which this law suit arose in a hospital in the State of Tennessee, and, if the venue of this action were transferred to the State of Tennessee for trial, the parties to this suit would have relative ease of access to the sources of proof concerning the cause of death, the manner of death, and other issues related to plaintiff's claim for damages.

Of less certainty because of the obvious disagreement are other assertions by affidavit. Defendant says also that:

(d) All of the numerous witnesses whose testimony will be material and necessary on behalf of the defendant, and all of the persons who witnessed the occurrence described in the plaintiff's Complaint, upon information and belief, reside in the State of Tennessee, and are beyond the reach of the processes of this court.

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(f) In the event the witnesses, or any of them, refuse to come to the State of South Carolina for the trial of this action in the City of Columbia, the defendant will be required to take their depositions for use on the trial of the case, which, in the first instance, will not be as effective as the live testimony of said witnesses, and, in the second instance, will require the defendant to go to great and unnecessary expense, all of which could be avoided if the case were tried in the State of Tennessee.

(g) This law suit arises out of an automobile collision in which the occupants of both vehicles involved were killed, and the defendant would show that the scene itself in this instance will, in all probability, be of material importance in the determination of the issues of liability involved in this action, and a jury drawn from the area in which the collision occurred could more readily visit the scene, or be familiar with it, than a jury drawn to try this action in the State of South Carolina.

(h) The defendant would further show that occupying the vehicle in which plaintiff's testator died, was the plaintiff's testator's wife, who left, upon information and belief, certain heirs who are residents of the State of Tennessee and, further, upon information and belief, the Executor of the Estate of the wife of the plaintiff's testator is a resident of the State of Tennessee and it is indicated that suit would be brought in said state; that, if the Executor of the Estate of the wife of plaintiff's testator institutes suit in the United States District Court in Tennessee, or in the State Court where it could be removed to the United States District Court in Tennessee, that action and this could be consolidated for trial, as the plaintiff here has made claim that he has some interest in said action, whereas the Executor of the Estate of the wife of plaintiff's testator, being a resident of Tennessee, could never bring action in the State of South Carolina, and therefore the venue of this action should be removed to said Court in Tennessee so that the Tennessee Court could consolidate all issues for trial;

(i) The driver of the vehicle owned by the defendant, who died as a result of the collision referred to in the plaintiff's Complaint herein, is not subject to the jurisdiction of this court and cannot be added as a party in this action, but said driver may be an indispensable party to the determination of all of the issues involved in this action, and certainly is a necessary party to conclusion of all of said issues, and the Executor of his Estate could be made a party if the venue of this action were transferred to the State of Tennessee for trial;

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(k) By transferring the venue of this action to the State of Tennessee, where this cause of action arose, the Trial Court can avoid the unnecessary problems in conflicts of laws and in law foreign to this jurisdiction.

Supporting these claims is the affidavit of counsel for defendant as to witnesses:

1. Alvin C. Johnson, the investigating officer of the Tennessee Highway Patrol, can testify as to the position of the vehicles involved in the accident when he arrived at the scene of the accident, he can describe the scene of the accident and give the applicable highway regulations governing traffic at the scene;

2. Dr. Rudolph P. Landry, a member of the staff of Newell Hospital at Chattanooga, Tennessee, can testify to the time of the arrival of Mr. and Mrs. Mimms at the hospital, the time of death of Mr. Mimms and the condition of both upon their admission to the Newell Hospital;

3. James Love, a truck driver, who arrived at the scene of the accident shortly after the accident had occurred will be able to testify as to the position of the cars, the condition of the occupants of both vehicles, the weather conditions, and the amount of traffic he observed on the highway immediately before the accident;

4. David Randolph, an operator of a service station in Chattanooga, Tennessee, arrived at the scene of the accident some short time after it occurred, and will be able to testify as to the position of the automobiles, the physical condition of the occupants of such automobiles, the terrain and highway conditions prevailing at the time of the accident, and will be able to testify to the time the

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