Rogge v. Menard County Mutual Fire Insurance Co., Civ. A. No. 2697.

• Decision Date: 08 June 1960
• Docket Number: Civ. A. No. 2697.
• Citation: 184 F. Supp. 289
• Parties: John P. ROGGE, Plaintiff, v. MENARD COUNTY MUTUAL FIRE INSURANCE COMPANY, Farmers and Grange District Mutual Tornado Insurance Company, and Elsie B. Rogge, Executor of the Last Will and Testament of Andrew J. Stout, deceased, Defendants.
• Court: U.S. District Court — Southern District of Illinois

184 F. Supp. 289

John P. ROGGE, Plaintiff, v. MENARD COUNTY MUTUAL FIRE INSURANCE COMPANY, Farmers and Grange District Mutual Tornado Insurance Company, and Elsie B. Rogge, Executor of the Last Will and Testament of Andrew J. Stout, deceased, Defendants.

Civ. A. No. 2697.

United States District Court S. D. Illinois, S. D.

June 8, 1960.

Drach, Howarth & Terrell, Springfield, Ill., for plaintiff.

Charles G. Briggle, Jr., Springfield, Ill., Sam Blane, Petersburg, Ill., for defendants.

POOS, District Judge.

John P. Rogge filed this suit here on October 26, 1959, against Menard County Mutual Fire Insurance Company, Farmers and Grange District Mutual Tornado Insurance Company and Elsie B. Rogge, as executor of the last will and testament of Andrew J. Stout, deceased, on a policy of fire and tornado insurance issued to A. J. Stout on June 11, 1958, covering a policy period of five years to June 11, 1963, to recover for a fire loss that occurred on October 27, 1958. Likewise plaintiff, on the same day, filed a similar suit in the same cause of action in the Circuit Court of Menard County, Illinois, except that in this suit the executor of the estate joins him as plaintiff.

The complaint alleges that corporate defendants and Elsie B. Rogge, executor of the estate of Andrew J. Stout, deceased, are citizens and residents of Illinois, and that plaintiff is a resident and citizen of Houston, Texas, and that the amount involved exceeds, exclusive of interest and costs, the sum of $10,000; that jurisdiction is invoked because of diversity of citizenship of the parties hereto.

The further allegation is that on June 11, 1958, and prior thereto, plaintiff was the owner in fee simple subject to a life estate in Andrew J. Stout of certain property located in Section 16, Township 17 North, Range 7 West of the Third Principal Meridian, Menard County, Illinois, which property was improved with a two-story dwelling house and other out buildings; that on June 5, 1958, the deceased, acting on his behalf and as agent of plaintiff, applied to defendants for a policy of insurance, insuring Stout, as life tenant and plaintiff as remainderman, against loss of improvements by fire or windstorm, and said corporate defendants thereupon issued their policy of insurance and named A. J. Stout as the insured under said policy instead of naming A. J. Stout as life tenant and John P. Rogge as remainderman, as the persons insured under said policy as mutually agreed upon by the corporate defendants and A. J. Stout on his own behalf and as agent for plaintiff.

The further allegation is that on October 27, 1958, the dwelling house was destroyed by fire, smoke and explosion; that on said date Stout died of injuries sustained by him in said fire; that the fire loss was in excess of $25,000, the amount of the policy; that on and prior to date of loss plaintiff and A. J. Stout had an insurable interest in said property so destroyed by fire; that plaintiff and the personal representative of A. J. Stout, the executor of his estate, have performed all the conditions of said policy on their part to be performed and that no part of the policy has been paid, although demanded.

The prayer of the complaint here is:

(1) that said policy of insurance be reformed to name A. J. Stout and John P. Rogge as the insured persons under the aforesaid policy.

(2) that plaintiff have judgment in such amount as shall appear to be due him for his interest in said property under said policy.

The prayer of the complaint in the State Court is that the policy be reformed to include John P. Rogge as an insured, for judgment in favor of both, and that the Court divide the judgment between plaintiffs.

The policy is attached to the complaint as Exhibit "A". The policy provides:

"do insure A. J. Stout and legal representatives in the sum of $25,000.00 for loss by fire,"

and further states the facts as alleged in the complaint here and in the State Court.

The corporate defendants file a motion to dismiss on the ground that the same action is pending in the Circuit Court of Menard County, Illinois. They attach to the motion a certified copy of a complaint filed by plaintiff herein wherein he and Elsie B. Rogge as executor of the last will of Andrew Stout, deceased, join as plaintiffs against the corporate defendants. This complaint was filed on October 26, 1959, and was entitled "Elsie B. Rogge, Executor of the Last Will of Andrew Stout, deceased, and John P. Rogge, plaintiffs, vs. Menard County Mutual Fire Insurance Company and Farmers and Grange District Mutual Tornado Insurance Company, defendants, No. L. 59-20." The cause of action alleged claims on the same policy of insurance and is in effect the same cause of action as that claimed here. The allegations of the motion are that plaintiff is:

(1) Seeking relief in the State Court,

(2) This action unnecessarily burdens this court and the corporate defendants,

(3) Causes the defendants unnecessary inconveniences,

(4) Is a repetitious suit,

(5) May cause corporate defendants with duplicate or conflicting determinations of this court and the state court,

(6) That this court, under the circumstances, is not in a position to do complete justice,

(7) That under the doctrine of forum non conveniens the corporate defendants may not be twice vexed with the same action in the different courts at the same time.

The court points out that the executor is not brought before this court with process, and has not entered her appearance, although she is named in the complaint as a defendant. This leaves the court absent a party who may have some interest in the policy declared upon. The policy as above pointed out runs to the decedent and his personal representative, the executor.

The grounds of the motion when analyzed can be decided on four general propositions: (1) it is improper to seek relief in a federal and state court, both having jurisdiction at the same time, (2) the possibility of two judgments against the corporate defendants from the respective courts, (3) hardship in parties under the doctrine of forum non conveniens, and (4) lack of diversity of citizenship when the party plaintiff and one of the defendants, when properly aligned, is a resident and there is no collision of interest between the nonresident plaintiff and resident defendant.

The plaintiff has the legal right to bring the cause of action in both courts. This doctrine is well settled. The doctrine is announced in 1 Am.Jur. p. 44, Sec. 40, as follows:

"The rule that the pendency of an action in one jurisdiction cannot be pleaded in abatement of a subsequent action in another jurisdiction finds application where separate suits are pending at the same time, one in a Federal court, and one in a State court; early cases which seemingly entertained the view that such actions could be pleaded in abatement (13) have long since been disregarded. It is now well established that the pendency of an action in personam in a state court cannot be pleaded in abatement of a subsequent suit brought in the Federal court having concurrent jurisdiction with the State court, although both suits are between the same parties, and for the same cause. (14) The converse of this rule is equally true as a general proposition. The pendency of a prior suit in the Federal court is not generally a bar to a suit in the State court by the same plaintiff against the same defendant and for the same cause of action, unless the action in the Federal court is one that has been removed from the State court."

1 Am.Jur. p. 44, Sec. 40 Abatement and Revival.

The doctrine of forum non conveniens is inapplicable here for the reason that the State court is located at Petersburg, Illinois, approximately 25 miles from Springfield, in which city is located the courthouse for this court. There is no necessity for witnesses to travel hundreds of miles at great expense, and there is no possibility that the cost and expense of litigation will consume any judgment. The case can be tried in either court at about the same expense. Springfield would be just as convenient as Petersburg. The practical aspect of the doctrine is discussed in Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055, where the court said:

"Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to which plaintiff resorts, and experience has not shown a judicial tendency to renounce one's own jurisdiction so strong as to result in many abuses.

"If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, `vex,' `harass,' or `oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.

"Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is

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