Morehead v. Barksdale
| Decision Date | 05 January 1959 |
| Docket Number | No. 7778.,7778. |
| Citation | 263 F.2d 117 |
| Parties | Donald D. MOREHEAD, Petitioner, v. Honorable A. D. BARKSDALE, Judge of the District Court for the Western District of Virginia. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John D. Easley, Easley & Hoge, Edmunds, Whitehead, Baldwin & Graves, Lynchburg, Va., and W. W. Wharton, Harrisonburg, Va., on petition.
Arthur B. Davies, III, Lynchburg, Va., Hickson & Davies, Lynchburg, Va., and Fein, Cavanaugh, Kimball & Goldblatt, Springfield, Mass., on answer of Ernest W. Boussey, Jr.
Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.
Upon the District Judge's order denying the defendant's motion to dismiss a suit for personal injuries on the ground of forum non conveniens, the defendant petitions this court to issue a writ of mandamus under 28 U.S.C.A. § 1651(a)1 compelling the District Judge to vacate the order and to dismiss the suit.
In December, 1956, Ernest W. Boussey, Jr., sustained personal injuries while a passenger in an automobile operated by the defendant, Donald D. Morehead, in Heidelberg, Germany, when the vehicle ran off the highway and collided with a tree. Boussey and Morehead were then members of the United States Army, stationed in Germany. At the time of the accident the vehicle was also occupied by four other American soldiers, all now residing in the United States, and one German girl. The United States Military Police, but not the local German police, made a formal investigation and filed a report which is now in the United States. Boussey received extended medical treatment in Army hospitals, the records of which, covering 250 pages, are presently located at Walter Reed Hospital in Washington, D. C. Morehead's vehicle was insured under an automobile liability policy issued by a German insurance company. On May 7, 1958, Boussey filed a personal injury suit against Morehead in the United States District Court for the Western District of Virginia. Morehead, a citizen of Virginia, has been personally served; Boussey is a citizen of Massachusetts.
Morehead filed a motion to dismiss the suit on the ground of forum non conveniens since (1) the substantive law of Germany is applicable to determine liability; (2) witnesses are in Germany (which witnesses he does not state); (3) the scene of the accident is in Germany; (4) a judgment in a United States court, allegedly not recognized in Germany, would be nugatory since Morehead is financially embarrassed, making the real party in interest the German insurer; and (5) the insurance company has agreed to waive any statute of limitations and costs security and to accept service of process in Germany on behalf of Morehead and itself.
Morehead correctly concedes that the District Judge's order was interlocutory, since the case has not yet gone to trial and no final judgment has been entered. See Clinton Foods v. United States, 4 Cir., 1951, 188 F.2d 289, 291. The power of the Courts of Appeals to review unappealable interlocutory orders, by use of mandamus, has been a subject of conflict among the circuits.2 Where a District Judge has granted or denied transfer of a civil action to another district under 28 U.S.C.A. § 1404(a),3 some courts have held that they are without jurisdiction to review such an interlocutory order, Clayton v. Warlick, 4 Cir., 1956, 232 F.2d 699; All States Freight v. Modarelli, 3 Cir., 1952, 196 F.2d 1010; Great Northern Railway Company v. Hyde, 8 Cir., 1956, 238 F.2d 852 reargued and reaffirmed, 8 Cir., 1957, 245 F.2d 537; but others have granted review on the theory that any error in this type of interlocutory order would probably be incorrectible on appeal, Ford Motor Co. v. Ryan, 2 Cir., 1950, 182 F.2d 329; Wiren v. Laws, 1951, 90 U.S.App.D.C. 105, 194 F.2d 873; Atlantic Coast Line R. Co. v. Davis, 5 Cir., 1950, 185 F.2d 766. The petitioner points out that recently the Supreme Court of the United States has indicated that in some circumstances there is discretionary power to review by way of mandamus. See La Buy v. Howes Leather Co., 1957, 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290, which upheld the Seventh Circuit's issuance of a writ of mandamus to vacate a District Judge's interlocutory order referring an antitrust case for trial before a master.
However, we need not determine the impact of that decision on the case before us, nor the effect of th...
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...174, 183 (1 Cir.1954), by Judge Parker for the Fourth in Clayton v. Warlick, 232 F.2d 699, 702-706 (1956), but see Morehead v. Barksdale, 263 F.2d 117, 118-119 (4 Cir.1959), and General Tire and Rubber Co. v. Watkins, 326 F.2d 926, 929 (4 Cir.), cert. denied, 377 U.S. 909, 84 S.Ct. 1166, 12......
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