Shewbrooks v. A.C. and S., Inc., 56014

Decision Date11 May 1988
Docket NumberNo. 56014,56014
Citation529 So.2d 557
PartiesNevin SHEWBROOKS, et ux. v. A.C. AND S., INC., et al.
CourtMississippi Supreme Court

Michael B. Wallace and Julie L. Sneed, Phelps, Dunbar, Marks, Claverie & Sims, Jackson, for appellants.

Richard L. Forman and Walter G. Watkins, Jr., Butler, Snow, O'Mara, Stevens & Cannada, Natie P. Caraway and John D. Price, Wise, Carter, Child & Caraway, Michael S. Allred and Thomas L. Kirkland, Jr., Satterfield & Allred, Curtis E. Coker and Gary K. Jones, Daniel, Coker, Horton & Bell, Edward J. Currie, Jr., Steen, Reynolds, Dalehite & Currie, Jackson, James O. Dukes, Bryant, Stennis & Colingo, Gulfport P.N. Harkins, III, William F. Goodman, III, and Douglas J. Gunn, Watkins & Eager, Thomas W. Tardy, III, Thomas, Price, Alston, Jones & Davis, and Don Moore, Jackson, for appellees.

ON PETITION FOR REHEARING

En Banc.

HAWKINS, Presiding Justice, for the Court:

The Petition for Rehearing is granted and the following substituted for the opinion of the Court.

Nevin and Anna Mae Shewbrooks have appealed from a judgment of the circuit court dismissing their action against A.C. and S., Inc., and numerous other corporate co-defendants because of lack of personal jurisdiction over the defendants and forum non conveniens. Finding the circuit court in error, we reverse and remand for trial upon the merits.

FACTS

Nevin and Anna Mae Shewbrooks, Delaware residents, filed suit in the circuit court of the 1st Judicial District of Hinds County against 18 corporate defendants, none of which had its principal office or was domiciled in Mississippi. The suit was for asbestos poisoning received by Shewbrooks in Delaware, New Jersey and Pennsylvania as a result of mining, manufacturing and distribution of asbestos by the various defendants. The defendants are engaged in business in this state and are subject to process in this state. 1

The complaint charges the defendants with knowingly mining, manufacturing and marketing asbestos years after discovery of its dangers, and concealing its hazards from their employees and the public. It also charges a conspiracy between them to conceal such dangers.

The circuit court sustained motions to dismiss on two grounds: lack of personal jurisdiction over the defendants and forum non conveniens. The circuit court clearly erred in dismissing for lack of jurisdiction.

LAW

There is no serious contention on appeal that the circuit court lacked personal jurisdiction of the defendants, all of which do business in Mississippi and are subject to process in this state. This ground of dismissal needs little discussion.

The fact that a plaintiff and a defendant are non-residents of a state in a transitory cause of action which accrued in another state does not, in and of itself, deprive a court of lawful authority (i.e., "jurisdiction") to hear the case, and this is universally recognized by all courts.

This familiar principle of law was settled in this state long ago in Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 So. 53 (1897). In that case the plaintiff lived in Illinois, the defendant corporation was domiciled in Illinois, and the assault on the plaintiff by an employee of the defendant occurred in Illinois. Suit, however, was brought in the circuit court of Claiborne County. We then held that there was:

[I]n our own state, no ground left for dispute that in transitory actions, whether in tort or on contract, our courts were wide open to any suitor, resident or nonresident, against his adversary, whether resident or nonresident, whether a natural person or an artificial one, regardless of where the right of action occurred, if only the courts had jurisdiction of the subject-matter, and could obtain jurisdiction of the party, either by a voluntary appearance, or by service of process. [Emphasis added]

Id. 74 Miss. at 796, 22 So. at 55. See: Read v. Sonat Offshore Drilling, Inc., 515 So.2d 1229 (Miss.1987); Slater v. Mexican Nat'l R.R. Co., 194 U.S. 120, 48 L.Ed. 900, 24 S.Ct. 581 (1904); 30 A.L.R. 255.

We turn then to the other ground for dismissal.

I. WHAT COURTS ARE ALL ABOUT

Courts of this nation are the passive branch of government. We have no lawful authority to decide any issue or pronounce any law not required from the facts squarely presented in an actual case before us. The converse of this is also true. When we have a case before us which we have the lawful authority to decide, we have no authority not to decide it. We can neither ask for nor invite lawsuits, but at the same time--and just as important--we cannot refuse to hear a case, either. That is, we cannot refuse in conformity with our solemn responsibility as a court.

In Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed. 257, 291 (1821), the United States Supreme Court speaking through Chief Justice Marshall, stated:

It is most true, that this court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction, if it should. The judiciary cannot, as the legislature may, avoid a measure, because it approaches the confines of the constitution. We cannot pass it by, because it is doubtful. With whatever doubt, with whatever difficulties a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur, which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously perform our duty.... We find no exception to this grant, and we cannot insert one. [Emphasis added]

That Court in Knox County v. Aspinwall, 65 U.S. (24 How.) 376, 16 L.Ed. 735 (1861), stated:

[B]ut no court, having proper jurisdiction and process to compel the satisfaction of its own judgments, can be justified in turning its suitors over to another tribunal to obtain justice.

65 U.S. at 385.

In Willcox v. Consolidated Gas Co., 212 U.S. 19, 40, 29 S.Ct. 192, 195, 53 L.Ed. 382, 394, 48 LRA NS 1134 (1909), that Court stated: "When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction." 212 U.S. at 40, 29 S.Ct. at 195, 53 L.Ed. at 394-395.

This holding was repeated by the United States Supreme Court in England v. Louisiana Medical Examiners, 375 U.S. 411, 415, 84 S.Ct. 461, 464, 11 L.Ed.2d 440, 445 (1964).

In State v. Killigrew, 202 Ind. 397, 174 N.E. 808 (1931), the Indiana Supreme Court held:

[W]hen a court has jurisdiction over a class of cases and one seeking relief invokes the jurisdiction of the court in the manner prescribed by law, the particular cause is, ipso facto, under the jurisdiction of the court and the court cannot refuse jurisdiction.

Id. at 809.

The Indiana Supreme Court again in Rosenbarger v. Marion Circuit Court, 239 Ind. 132, 155 N.E.2d 125 (1959), held:

[T]he power to hear and decide carries with it the duty to do so. Mandate will lie to require an inferior court to hear the merits of a cause where it was improperly dismissed.

Id. at 127.

In Kruidenier v. McCulloch, 257 Iowa 1315, 136 N.W.2d 546 (1965), the Iowa Supreme Court held:

[S]tate courts of original jurisdiction have the duty to hear and determine cases properly before them. Such courts may not deny relief to persons properly before them to the extent to which they are entitled and the courts have power to afford under the circumstances.

Id. at 547.

In Lansverk v. Studebaker-Packard Corp., 54 Wash.2d 124, 338 P.2d 747 (1959), the Washington Supreme Court held:

[W]e find nothing in our constitution, our statutes, our rules, or our decisions that recognizes the existence of any discretion in the superior court of any county to decline to exercise the jurisdiction with which it is vested by the constitution and our statutes because of forum non conveniens.

Id. at 748. See also: Vickers v. Kansas City, 216 Kan. 84, 531 P.2d 113, 121 (1975); Buckman v. United Mine Workers of America, 80 Wyo. 199, 339 P.2d 398, 400 (1959).

Neither can state courts make a distinction in access to its courts between in- and out-of-state citizens. Article 4, Sec. 2, Paragraph 1 of the United States Constitution provides: "The Citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several States." In Chambers v. Baltimore & O.R. Co., 207 U.S. 142, 28 S.Ct. 34, 52 L.Ed. 143 (1907), the United States Supreme Court held:

[D]ifferent states may have different policies, and the same state may have different policies at different times. But any policy the state may choose to adopt must operate in the same way on its own citizens and those of other states. The privileges which it affords to one class it must afford to the other. Any law by which privileges to begin actions in the court are given to its own citizens and withheld from the citizens of other states is void, because it is in conflict with the supreme law of the land.

207 U.S. at 149, 28 S.Ct. at 35.

Likewise, a court of this state may not decline jurisdiction because it is based on the law of another state. See: First Nat'l Bank v. United Airlines, Inc., 342 U.S. 396, 72 S.Ct. 421, 96 L.Ed. 441 (1952); Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212 (1951).

II. FORUM NON CONVENIENS

There is one important qualification to this principle, and that is the doctrine of forum non conveniens. As stated in 20 Am.Jur.2d, Courts, Sec. 172:

[T]he doctrine of forum non conveniens is a most important qualification of the general theory that a court which has jurisdiction of a case has not only the right, but also the duty to exercise it, ...

Section 84 of the Restatement (Second) of Conflict of Laws (1971), embraces this proposition:

Sec. 84. Forum Non Conveniens

A state will not exercise jurisdiction if it is a seriously...

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