Southern Ry. Co. v. Bowling, 60-622

• Decision Date: 24 April 1961
• Docket Number: No. 60-622,60-622
• Parties: SOUTHERN RAILWAY COMPANY, a foreign corporation, Appellant, v. Junior L. BOWLING, Appellee.
• Court: Florida District Court of Appeals

Page 433

129 So.2d 433

SOUTHERN RAILWAY COMPANY, a foreign corporation, Appellant, v. Junior L. BOWLING, Appellee.

No. 60-622.

District Court of Appeal of Florida, Third District.

April 24, 1961.

Rehearing Denied May 25, 1961.

Scott, McCarthy, Preston, Steel & Gilleland and Robert J. Beckham, Miami, for appellant.

Nichols, Gaither, Green, Frates & Beckham, Miami, for appellee.

HORTON, Chief Judge.

This appeal seeks the reversal of an order denying the appellant's motion to dismiss. This was an action brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. By its motion, the appellant sought application of the doctrine of forum non conveniens. The cause of action arose in the State of Georgia between non-residents of this state.

The application of this doctrine is discretionary on the part of the trial judge. See Hagen v. Viney, 124 Fla. 747, 169 So. 391. Therefore, the question presented is whether there was a clear abuse of discretion on the part of the trial judge.

Having reviewed the record, the briefs and appendices of the parties, we conclude that the appellant has failed to demonstrate an abuse of the discretion vested in the trial judge.

Accordingly, the order appealed is affirmed.

CARROLL, CHAS., J., concurring in part and dissenting in part.

MILLEDGE, STANLEY, Associate Judge, concurring in part and dissenting in part.

CARROLL, CHAS., Judge (concurring in part and dissenting in part).

I concur with Chief Judge HORTON in holding that the order appealed is appealable under rule 4.2, subd. a, Florida Appellate Rules, 31 F.S.A., but I am unable to agree with the view expressed in the majority opinion that the trial court's refusal to dismiss this case under the doctrine of forum non conveniens was not an abuse of discretion.

The circumstances presented so strong a case that the denial of the motion to dismiss was either an abuse of judicial discretion or was an improper rejection of the established doctrine of forum non conveniens. The doctrine is a part of the law of Florida, when neither party resides in the state. See Hagen v. Viney, 124 Fla. 747, 169 So. 391. Cf. Greyhound Corporation v. Rosart, Fla.App.1960, 124 So.2d 708; Atlantic Coast Line Railroad Co. v. Ganey, Fla.App.1960, 125 So.2d 576.

In Guif Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 843, 91 L.Ed. 1055, 1062, the Supreme Court of the United States suggested some of the considerations which should serve as guides in deciding whether to apply the doctrine:

'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. ¹ * * *'

Circumstances bearing on the applicability of the doctrine here, included the following:

Neiher party was a resident of Florida.

The plaintiff was a citizen and resident of Rome, Georgia.

The defendant railway company had its principal or home office in Norfolk, Virginia.

The cause of action arose in Rome, Georgia. ²

Dade County, Florida, the chosen forum, is approximately 750 miles from Rome, Georgia, being more distant therefrom than any point in the Southern Railway system.

The laws of Georgia, not Florida, would apply (Astor Electric Service v. Cabrera, Fla.1952, 62 So.2d 759), to the extent that state substantive law may be involved in this F.E.L.A. case (Ft. Worth & Denver Railway Co. v. Threadgill, 5 Cir., 1955, 228 F.2d 307).

All of the witnesses, including the treating physicians are in Rome, Georgia, and are not amenable to compulsory process issued in Florida.

The additional expense for transporting and maintaining witnesses would be considerable. ³

The expense of transporting and maintaining witnesses and other parties connected with the trial is more considerable because of the great distance involved.

Selection of a forum in Florida requires the employment of additional local counsel.

Opportunity to view the premises, which could become important here, is lost.

No substantial difference appears in the time in which a case may be reached for trial, as between available courts in Georgia and in Dade County, Florida.

The forum chosen, circuit court in Dade County, Florida, is a busy court with heavy common law and equity dockets made up of Florida cases.

Choice of the circuit court in Metropolitan Dade County, Florida, as a place in which to seek damages for a tort injury suffered in Rome, Georgia, may readily be recognized as astute forum shopping. ⁴

The appellee argued that because the federal statute allows the railroad company to be sued wherever it does business, the doctrine should not be applied in F.E.L.A. cases. The argument is without merit. State courts are free to apply the doctrine of forum non conveniens in F.E.L.A. cases. Missouri ex rel. Southern Railway Co. v. Mayfield, 340 U.S. 1, 71 S.Ct. 1, 95 L.Ed. 3. Since that decision the states have inclined toward use of the doctrine. See I Moore, Federal Practice, pp. 2635-36 (1959). Price v. Atchison, T. & S. F. Ry. Co., 1954, 42 Cal.2d 577, 268 P.2d 457, 43 A.L.R.2d 756; Johnson v. Chicago, Burlington & Quincy Railroad Co., 1954, 243 Minn. 58, 66 N.W.2d 763; Maynard v. Chicago & North Western Railway Co., 1956, 247 Minn. 228, 77 N.W.2d 183; Elliott v. Johnston, 1956, 365 Mo. 881, 292 S.W.2d 589; Gore v. United States Steel Corp., 1954, 15 N.J. 301, 104 A.2d 670, 48 A.L.R.2d 841; St. Louis-San Francisco Railway Co. v. Superior Court, Creek County, Okl.1955, 290 P.2d 118; Atchison, Topeka & Santa Fe Railway Co. v. District Court of Creek County, Okl.1956, 298 P.2d 427; Plum v. Tampax, Inc., 1960, 399 Pa. 553, 160 A.2d 549. See also 1959 Wisc.Stats., § 262.01 et seq.; 28 U.S.C.A. § 1404(a). Contemporary legal commentators favor its use. Barrett, the Doctrine of Forum Non Conveniens, 35 Cal.L.Rev. 380, 381-83 (1947); Currie, Change of Venue and the Conflict of Laws, 22 U. of Chi.L.Rev. 405, 421 (1955); Ehrenzweig, The Transient Rule of Personal Jurisdiction: The 'Power Myth' and Forum Conveniens, 64 Yale L.J. 289, 312 (1956); Kaufman, Transfers Under New Judicial Code, 10 F.R.D. 595, 606 (1951); Restatement Second, Conflict of Law, § 117e (tent. draft no. 4, 1957).

The 'sound judicial discretion' which is reposed in the trial court to apply or reject the doctrine of forum non conveniens is not unbridled, but is to be exercised in the light of the facts and circumstances in each particular case, as guided by prescribed standards of judicial action. That implies that the doctrine should be put to use in a suit in which the facts and circumstances bearing on the doctrine make a strong case for its use, and that the doctrine should be rejected in those suits where circumstances fail to present such a substantial or strong showing. ⁵ A dissenting opinion is hardly the place to attempt to state any policy pronouncement on a matter such as this, but it seems evident that the range of choice which 'sound judicial discretion' give does not permit rejection of the doctrine in a case such as this one, with facts so strongly favoring the application of the doctrine of forum non conveniens.

I am of the opinion that the learned trial judge was in error when he denied the motion, and that the order appealed from should be reversed with directions to dismiss the cause.

MILLEDGE, STANLEY, Associate Judge (concurring in part and dissenting in part).

A majority of the court, although differing as to the proper disposition of the case, agree that the order appealed from is appealable. I am in accord with the opinion and conclusion of the Chief Judge as to the merits of the case and wish to state my own view as to the significance of factors here which bear upon the trial court's discretion not necessarily present in all cases to which the doctrine of forum non conveniens is applicable.

In the case of Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 842, 91 L.Ed. 1055, the Supreme Court of the United States said:

'The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. These statutes are drawn with a necessary generality and usually give a plaintiff a choice of courts, so that he may be quite sure of some place in which to pursue his remedy. But the open door may admit those who seek not simply justice but perhaps justice blended with some harassment. A plaintiff sometimes is under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself.

'Many of the states have met misuse of venue by investing courts with a discretion to change the place of trial on various grounds, such as the convenience of witnesses and the ends of justice. The federal law contains no such express criteria to guide the district court in exercising its power. But the problem is a very old one affecting the administration of the courts as well as the rights of litigants, and both in England and in this country the common law worked out techniques and criterial for dealing with it.

'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...