Missouri Pacific R. Co. v. Tircuit, 89-IA-177

• Decision Date: 29 November 1989
• Docket Number: No. 89-IA-177,89-IA-177
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. Russ C. TIRCUIT, Roscoe P. Beavers and H. Wayne Willis.
• Court: Mississippi Supreme Court

Page 878

554 So.2d 878

MISSOURI PACIFIC RAILROAD COMPANY v. Russ C. TIRCUIT, Roscoe P. Beavers and H. Wayne Willis.

No. 89-IA-177.

Supreme Court of Mississippi.

Nov. 29, 1989.

Luther T. Munford, Phelps Dunbar Marks Claverie & Sims, Jackson, William H. Howard, III, Phelps Dunbar Firm, New Orleans, La., William C. Brabec, Phelps Dunbar Firm, Jackson, for appellant.

C. E. Sorey, II, William W. Ramsey, Ramsey Andrews & Sorey, Vicksburg, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and PITTMAN, JJ.

ROBERTSON, Justice, for the Court:

I.

These three consolidated appeals, interlocutorily presented, raise important issues regarding venue of actions brought by non-resident railroad workers against a non-resident railroad. In none of these cases is there any connection with the State of Mississippi aside from the residence of plaintiffs' counsel in Warren County. Because of this, and because each of these three workers has available forums in other states of infinitely greater convenience to all concerned, we order the actions dismissed on grounds of forum non conveniens.

II.

A.

The three Plaintiffs/Appellees are Russell C. Tircuit, an adult resident citizen of Addis, Louisiana; Roscoe P. Beavers, an adult resident citizen of Gretna, Louisiana; and H. Wayne Willis, an adult resident citizen of Dennison, Texas.

Missouri Pacific Railroad Company is the Defendant/Appellant in each of these cases. Missouri Pacific is a Delaware corporation having its principal place of business in Omaha, Nebraska. Missouri Pacific is a corporation authorized to do business in Mississippi, having appointed as its agent for process Daniel J. O'Bierne of Natchez, Mississippi. Notwithstanding, Missouri Pacific ceased operations in Mississippi several years ago. At the times relevant to these actions, and at all times since, Missouri Pacific has neither operated nor maintained any lines in Mississippi, has had no stations or depots in Mississippi, and, of course, has run no trains to, from or through points in Mississippi. Missouri Pacific has no office nor bank accounts in Mississippi. Indeed, the complaints filed by Tircuit, Beavers and Willis make no allegation that Missouri Pacific does anything in this state other than maintain an agent for process. Mississippi is not mentioned directly or inferentially in any of these three complaints except in paragraph 1 of each regarding agent for process O'Bierne.

Plaintiff Tircuit alleges that on November 18, 1986, in the course and scope of his employment with Missouri Pacific, he slipped when climbing steps at a depot maintained by Missouri Pacific at Addis, Louisiana, and as a result of Missouri Pacific's negligence, he sustained serious, painful and disabling personal injuries.

Plaintiff Beavers alleges that on February 18, 1988, in the course and scope of his employment with Missouri Pacific, he was injured when a car he was riding maintained by Missouri Pacific at Donnalsonville, Louisiana, was caused to derail, and as a result of Missouri Pacific's negligence, he sustained serious, painful and disabling personal injuries.

Plaintiff Willis alleges that on July 7, 1988, in the course and scope of his employment with Missouri Pacific, he was injured when operating a locomotive near Whitesboro, Texas. Willis says he was confronted with a car which had been rolled onto the main track and attempted to apply the emergency brake, only to be thrown about the inside of the locomotive due to severe unexpected slack action caused by the brake application, and as a result of Missouri Pacific's negligence, he sustained serious, painful and disabling personal injuries.

Each of these Plaintiffs has brought his action under the Federal Employers' Liability Act, 45 U.S.C. Secs. 51-56. Each Plaintiff employed counsel maintaining their offices in Vicksburg, Mississippi, and sought to establish venue in Warren County. In each action Missouri Pacific proceeded timely under Rule 12(b)(3), Miss.R.Civ.P., and moved to dismiss on grounds that venue was not proper in Warren County nor in any other county of Mississippi, or, in the alternative, to dismiss pursuant to the doctrine of forum non conveniens. In the proceedings below on these motions, the record reflects in each case that there are no potential witnesses with respect to liability, damages (including expert witnesses) or any other matter who reside in Mississippi, nor are there any documents, exhibits or other evidence in this state. In spite of these facts, the Circuit Court of Warren County denied Missouri Pacific's motions to dismiss and ordered that the cases proceed in Warren County. By order entered February 1, 1989, we granted Missouri Pacific's motion for interlocutory appeal.

III.

The Federal Employers Liability Act provides for concurrent federal and state jurisdiction. 45 U.S.C. Sec. 56. This Court has for years routinely exercised jurisdiction over FELA cases brought in the courts of this state and rendered final adjudications of such cases. See, e.g., Lambert v. Illinois Cent. Gulf R. Co., 547 So.2d 50 (Miss.1989); Illinois Cent. R. Co. v. Coussens, Adm'x., 223 Miss. 103, 77 So.2d 818 (1955); see also Burrell v. Mississippi State Tax Commission, 536 So.2d 848, 863-64 (Miss.1988). When a railroad worker elects to bring his FELA action in state court, the state's law of venue controls. See Rodriguez v. Grand Trunk Western R. Co., 120 Mich.App. 599, 328 N.W.2d 89, 90-91 (1982); Garland v. Seaboard Coastline R. Co., 658 S.W.2d 528, 531 (Tenn.1983).

We have a railroad venue statute in this state. Mississippi Code Annotated Sec. 11-11-5 (Supp.1989) provides, in relevant part:

Actions against any railroad ... corporation ... may be brought in the county where the cause of action accrued, in the county where the defendant has its principal place of business or in the county in which the plaintiff resides.

One may see at a glance none of the three venues authorized by Section 11-11-5 afford these plaintiffs a venue in Mississippi. None of these actions accrued in any county in Mississippi, none of the plaintiffs reside in Mississippi and, as noted above, Missouri Pacific's principal place of business is in Omaha, Nebraska.

Our general venue statute, Miss.Code Ann. Sec. 11-11-3 (Supp.1989), authorizes venue of an action against a foreign corporation in any county in which it "may be found." Missouri Pacific was found in Adams County. From this record Adams County is the only Mississippi county in which Missouri Pacific may be found.

Missouri Pacific argues strenuously that the entire matter of venue of actions against railroads is controlled by the special railroad venue statute, Section 11-11-5. If that were so, we would in these actions be in the anomalous posture of having in personam jurisdiction over the defendant railroad but with no place in which the case may lawfully be tried. Compare Loftus v. Pennsylvania Railroad Co., 107 Ohio St. 352, 140 N.E. 94, 97-99 (1923). That a result may be anomalous does not necessarily preclude it. The legislature certainly has the authority to enact regarding venue of actions against railroads and to provide that, if the action does not fit within a venue authorized by that special venue statute, then it may not be heard in Mississippi, notwithstanding that there be personal jurisdiction and, as well, great convenience to the parties.

We find no language in Section 11-11-5 suggesting that it is the only venue statute to which parties may resort in an action against a railroad. The statute merely provides that actions against any railroad corporation "may be brought" in one of the three venues noted above. The general venue statute, Section 11-11-3, provides several alternative factual tests for venue including where a non-resident corporation "may be found." The statute goes on to provide that "civil actions of which the circuit court has original jurisdiction shall be commenced ..., except where otherwise provided." Familiarity with the English language informs that, if one of the three alternative tests for venue of the railroad venue statute be met, the parties are limited to those three choices. However, where one of the tests for venue under the railroad venue statute is not met, the language of the statutes does not exhaust the possibilities of proper venue against a railroad. The railroad venue statute, because it employs the permissive "may", requires that it be read in conjunction with the general venue statute which provides that actions "shall" be commenced in one of the counties authorized, "except where otherwise provided." As the railroad venue statute does not otherwise provide for venue, we have no authority to ignore the general venue statute. When Section 11-11-3 is consulted, we find that it authorizes venue for these actions in Adams County where Missouri Pacific has been found, but not in Warren County. But because the railroad venue statute employs the permissive "may" and because the general venue statute provides that, "except where otherwise provided," actions "shall" be commenced in one of the counties authorized, we have no authority to ignore the latter.

We hold that venue of each of these actions lay in Adams County and that the Circuit Court erred when it denied Missouri Pacific's objections to venue in their entirety.

IV.

Before considering whether we should order these cases transferred to the Circuit Court of Adams County, we confront Missouri Pacific's claim of forum non conveniens. If that doctrine requires dismissal in any event, transfer to Adams County would be a vain and hollow act.

We have long accepted that the courts of this state should not try an action if that would be seriously inconvenient to one or more of the parties, provided that a more appropriate forum is available. See, e.g., Strickland v. Humble Oil & Refining Co., 194 Miss. 194, 203-05, 11 So.2d 820, 822 (1943); Poole v. Mississippi Publishers Corp., 208 Miss. 364, 383-85,...