Southern Ry. Co. v. McCubbins, 66--225

• Decision Date: 28 February 1967
• Docket Number: No. 66--225,66--225
• Citation: 196 So.2d 512
• Parties: SOUTHERN RAILWAY COMPANY, a corporation, Appellant, v. Clyde B. McCUBBINS, Appellee.
• Court: Florida District Court of Appeals

Page 512

196 So.2d 512

SOUTHERN RAILWAY COMPANY, a corporation, Appellant, v. Clyde B. McCUBBINS, Appellee.

No. 66--225.

District Court of Appeal of Florida, Third District.

Feb. 28, 1967.

Scott, McCarthy, Steel, Hector & Davis and Dwight Sullivan, Miami, for appellant.

Frates, Fay, Floyd & Pearson and Larry Stewart, Miami, for appellee.

Before HENDRY, C.J., and CARROLL and BARKDULL, JJ.

ON REHEARING

CARROLL, Judge.

On this appeal by the defendant from an order of the trial court denying its motion to dismiss under the doctrine of forum non conveniens, we entered an order of affirmance without opinion. Upon further consideration of the cause on rehearing a majority of the panel of this court which heard this appeal is of the opinion that the order denying the motion to dismiss should be reversed, whereupon, this court's order of affirmance filed January 17, 1967, is vacated, and this opinion and judgment of reversal is substituted.

The appellee Clyde B. McCubbins filed an action in the circuit court in Dade County against the appellant Southern Railway Company under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. It was alleged the plaintiff was injured in the course of his employment when struck by a hump engine in the company's railroad yard in Knoxville, Tennessee, and that his injuries were proximately caused by negligence of the defendant. A number of separate acts of negligence were alleged, relating to maintenance and operation of the railroad yard and the failure to furnish a safe place to work.

A motion of the defendant for dismissal of the cause under the doctrine of forum non conveniens was denied, with a direction in the order that the plaintiff 'should pay defendant all reasonable expenses that defendant incurs in excess of those that would have been incurred if this cause had been tried in Knoxville, Tennessee instead of in Miami, Florida.' The defendant then took this appeal from that interlocutory order.

At the outset we consider contentions of the appellee that the order is not appealable, and that the doctrine of forum non conveniens can not be applied by a state court in an F.E.L.A. case.

Neither of those contentions has merit. Florida Appellate Rule 4.2 authorizes interlocutory appeals in law actions from orders 'relating to venue.' An order denying a motion for dismissal on the doctrine of forum non conveniens is an interlocutory order 'relating to venue' appealable under rule 4.2 F.A.R., and this court so held in Southern Railway Company v. Bowling, Fla.App.1961, 129 So.2d 433.

By an act of Congress appearing as § 1404(a), 28 U.S.C.A. (June 25, 1948, c. 646, 62 Stat. 937), it was confirmed that the doctrine of forum non conveniens is applicable in F.E.L.A. cases. Appellee's reliance on statements in Baltimore & Ohio R. Co. v. Kepner, 1941, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, and certain other earlier federal decisions indicating that the doctrine should not be applied to F.E.L.A. cases, is misplaced. The statute referred to made those prior expressions of opinion on that question obsolete. ¹ Subsequent to the passage of that statute, the United States Supreme Court has held that the doctrine can be applied by state courts in F.E.L.A. cases. Missouri ex rel. Southern Pacific Railway Co. v. Mayfield, 340 U.S. 1, 71 S.Ct. 1, 95 L.Ed. 3. The doctrine of forum non conveniens is one which is sanctioned by the law of this state, where the cause of action arose in another jurisdiction and neither party resides in Florida. Hagen v. Viney, 124 Fla. 747, 169 So. 391.

By the motion to dismiss and affidavits in support thereof the following facts were made to appear. Neither of the parties is a resident of the State of Florida. The plaintiff resides in Knoxville, Tennessee, where he has been a registered voter since 1945. The defendant railway company is a Virginia corporation. Its principal office is not in Florida. It has an office and agent in Dade County, Florida, but does not operate its trains south of Jacksonville.

The travel distance from Knoxville to Miami was shown to be 1,088 miles by rail, 859 miles by highway and 687 miles by air. The material witnesses live in Knoxville, and cost of transporting and maintaining them for trial here, including their pay for the extra time involved, was estimated to be in excess of $5,500.

As to availability of trial facilities in the area of the plaintiff's residence, the defendant railway company submitted an affidavit of the president of the Knoxville Bar Association stating there were local attorneys competent to handle cases brought under F.E.L.A. and doctors competent to treat, evaluate and testify as to the injuries claimed. Also, affidavits were submitted by clerks of the local Tennessee state and federal courts to the effect that such causes customarily were brought to trial in the state court within four months after filing and in the federal court within six to eight months after filing. A former president of the Knoxville and Tennessee State Bar Associations stated by affidavit that in his experience plaintiffs in F.E.L.A. cases had received fair treatment in the hands of the local courts and juries, and that no preferential treatment of railway companies by the courts or juries had been observed. His affidavit added: 'In my opinion, no conditions exist that would prevent a plaintiff in a case brought under the provisions of the Federal Employers' Liability Act or Safety Appliance Act from obtaining a fair and impartial trial in our local courts and from receiving a fair and adequate award for any injuries and disabilities.'

In addition to the foregoing, the defendant submitted exemplified copies of pleadings showing the plaintiff McCubbins twice before had attempted unsuccessfully to sue on his claim in other remote jurisdictions. The documents revealed that an action had been filed on behalf of McCubbins on the same cause of action in Cook County (Chicago), Illinois; that jurisdiction was refused by that court on the doctrine of forum non conveniens; that thereafter suit was filed for McCubbins on the same cause of action in St. Clair County (East St. Louis), Illinois; and that the trial court there likewise rejected jurisdiction. The present action filed in Dade County, Florida, represents a third attempt to lodge the cause in a foreign jurisdiction equally distant from the local forum.

In opposition to the defendant railway company's motion to dismiss, the plaintiff filed an affidavit and an answer. In his affidavit plaintiff stated, on information and belief, that he would not receive a fair trial in Knoxville 'because of the predominant influence of the Southern Railway Company in that community,' and offered to pay additional expenses incurred (other than legal fees) as a result of the trial being held in Florida. The defendant's answer to the motion consisted principally of assertions and arguments that the various factors and matters presented by the defendant were not inconveniences or reasons for rejecting jurisdiction.

The appellant railway company contends it submitted a clear and compelling case for dismissal under the doctrine of forum non conveniens, and that denial of its motion was an abuse of...