Mooney v. Denver & R. G. W. R. Co.

• Decision Date: 07 August 1950
• Docket Number: No. 7373,7373
• Citation: 221 P.2d 628,118 Utah 307
• Parties: MOONEY, v. DENVER & R. G. W. R. CO.
• Court: Utah Supreme Court

Page 628

221 P.2d 628

118 Utah 307

MOONEY, v. DENVER & R. G. W. R. CO.

No. 7373.

Supreme Court of Utah.

Aug. 7, 1950.

Rawlings, Wallace & Black, Dwight L. King, all of Salt Lake City, for appellant.

VanCott, Bagley, Cornwall & McCarthy, Clifford L. Ashton, all of Salt Lake City, for respondent.

LATIMER, Justice.

Thomas B. Mooney, a resident of Denver, Colorado, commenced an action in the District Court of the Third Judicial District in and for Salt Lake County, State of Utah, to recover for certain personal injuries occasioned to him by the alleged negligent acts and conduct of the defendant, Denver and Rio Grande Western Railroad Company. The accident happened at Tabernash, Colorado, which is located approximately 66 miles west from the city of Denver, Colorado, and approximately 500 miles from the city of Salt Lake, Utah. The defendant, Denver and Rio Grande Western Railroad Company, is a corporation organized and existing under and by virtue of the laws of the State of Delaware and is authorized to transact business in the State of Utah with its principal place of business at Salt Lake City. It is engaged in interstate commerce and maintains and operates an interstate railway in the states of Utah and Colorado. While a major portion of the business of the defendant carrier may be carried on in the State of Colorado a large and substantial amount is transacted in this state. There are in excess of 298 miles of main line trackage belonging to the defendant in this state and it is one of the two principal east-west continental lines running between Salt Lake City, Utah, and Danver, Colorado.

After the service of summons on defendant's process agent, the defendant company appeared specially and moved to dismiss plaintiff's complaint upon the grounds of forum non conveniens. This motion was supported by an affidavit filed by counsel for defendant corporation. In substance, the affidavit averred that the plaintiff was a resident of the state of Colorado and the defendant a corporation of the state of Delaware; that the witnesses for the defendant, estimated to be ten in number and necessary to the defense of the action, resided in the state of Colorado; that because processes from the courts of this state were ineffective the defendant was unable to compel the attendance of the necessary witnesses at a hearing in Salt Lake City, Utah, without meeting the financial terms and conditions demanded by the witnesses; that of the ten witnesses, three would be physicians and surgeons and that they would not attend without additional compensation and extra expense allowances; that all of the ten witnesses lived within a convenient distance of the courts located in the city of Denver, Colorado; that there are both state and federal courts which have jurisdiction to try the action available in Colorado; that defendant is at a disadvantage in presenting its defense in this state in that it is impossible to have the jury view the premises where the accident took place or to view the defective equipment which allegedly caused the injury to plaintiff; that the trial of the action in the Third Judicial District Court would add to the congestion of the calendar in that district and would delay the trial of cases involving local residents and local issues of pressing importance; that the trial of this and similar cases between non-residents of Utah is increasing the administrative costs of the local courts and imposing additional burdens upon the citizens of this state, both financial and in the performance of their civic duties as jurors; that the distance between Denver, Colorado, and Salt Lake City, Utah, is 570 miles and that the cost to the defendant to litigate the case in this jurisdiction would amount to approximately $1,500.00.

The motion came on for hearing before Honorable John A. Hendricks, Judge of the Second Judicial District, who was called to sit as judge in the Third Judicial District Court. In his findings of fact he found the facts as alleged in the affidavit and the additional facts hereinafter recited. The latter are apparently based upon the trial judge taking judicial notice of the condition of the court calendar in the Third Judicial District. The facts dealing with the state of the court calendar are these: The trial calendar for the month of June, 1949, showed that a total of 165 civil cases were at issue and set for trial; that approximately half of that number could be disposed of during the month of June; that the crowded condition of the calendar necessitated calling in an extra judge to this district; that 29 similar cases involving personal injury suits against three different railroad companies were assigned for trial during the month of June, 1949; and that of that number, 17 were brought by non-residents suing on causes of action arising outside of the state of Utah.

The trial judge sustained the motion to dismiss the action upon the grounds of forum non conveniens, and plaintiff perfected his appeal to this court. We are thus presented with the question as to whether or not a District Court of this state can, because of convenience of court and parties, dismiss an action brought by a non-resident plaintiff against a foreign corporation on a cause of action arising outside this state.

In view of the fact that this action was brought under the Federal Employers' Liability Act, the venue provisions of Section 6 of that act become important. That section provides as follows: 'Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the serveral states.' As amended June 25, 1948, 45 U.S.C.A. § 56.

The foregoing section sets forth the requirements for venue as prescribed by the Congress of the United States. Similar requirements controlling venue within this state when the cause of action arises without the state are found in Section 104-4-5, U.C.A.1943. That section is as follows: 'All transitory causes of action arising without this state, except those mentioned in the next succeeding section, shall, if action is brought thereon in this state, be brought and tried in the county where any defendant in such action resides; and if any such defendant is a corporation, any county in which such corporation has an office or place of business shall be deemed the county in which such corporation resides, within the meaning of this section.'

In view of the provisions of these two sections, there can be no question raised that the Third District Court in and for Salt Lake County does not have jurisdiction of the cause of action, as the principal place of business of the defendant in this state is located in Salt Lake City, Salt Lake County, State of Utah. Therefore, if the actions of the trial judge in dismissing the action can be sustained the power must be found in the inherent right of a court to dismiss a cause of action over which it has jurisdiction for the reasons that there is a more convenient forum.

Before discussing the various cases dealing with the right or power of a district court of general jurisdiction to dismiss this action upon the grounds stated, we desire to quote relevant constitutional provisions and statutes of this state dealing with change of venue. We quote from the State Constitution to establish the policy that courts in this state must be open to all persons, and, we quote from the Code to show that within this state the legislature considered that courts should be clothed with discretionary power to transfer causes to other districts within the state for the convenience of witnesses or parties or when the ends of justice would be promoted.

Article I, Section 11, of the Constitution of the State of Utah, provides as follows: 'All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.'

Section 104-4-9, U.C.A.1943, insofar as is material, is as follows:

'The court may, on motion, change the place of trial in the following cases: * * *

'(3) When the convenience of witnesses and the ends of justice would be promoted by the change.'

We first dispose of appellant's contention that the Congress of the United States has decreed that the courts of this state must assume jurisdiction of Federal Employers' Liability Act cases and afford litigants a trial on the merits regardless of state procedure or practice. We have grave doubts that the Congress of the United States can require the courts of this state to assume jurisdiction and try all cases. However, we need not decide that question for the reason that we have concluded that neither the Federal Employers' Liability Act nor other federal statutes make it mandatory upon the courts of this state to exercise jurisdiction even though in the first instance the cause of action was properly instituted. We shall refer to pertinent United States Supreme Court decisions in chronological order.

In the case of Chambers v. Baltimore & Ohio R. R. Company, 207 U.S. 142, 28 S.Ct. 34, 35, 52 L.Ed. 143, decided November 18, 1907, the Supreme Court of the United States, in dealing with a cause of action running to a non-resident, founded upon the death of a locomotive engineer occurring in a foreign jurisdiction, announced the following principles as applicable at that time:

'In the decision of the merits of the case there are some fundamental principles which are of controlling effect. The...