State ex rel. Chicago, R. I. & P. R. Co. v. Riederer

• Decision Date: 11 May 1970
• Docket Number: No. 55126,55126
• Citation: 454 S.W.2d 36
• Parties: STATE of Missouri at the relation of CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a Corporation, Relator, v. The Honorable Henry A. RIEDERER, Judge of Division One of the Circuit Court of Missouri, Sixteenth Judicial Circuit, Jackson County, at Kansas City, Respondent.
• Court: Missouri Supreme Court

Page 36

454 S.W.2d 36

STATE of Missouri at the relation of CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a Corporation, Relator, v. The Honorable Henry A. RIEDERER, Judge of Division One of the Circuit Court of Missouri, Sixteenth Judicial Circuit, Jackson County, at Kansas City Respondent.

No. 55126.

Supreme Court of Missouri, En Banc.

May 11, 1970.

Thad C. McCanse, Bruce C. Houdek, James, McCanse & Larison, Kansas City, for relator.

Charles C. Moore, Glenn McCann, Knipmeyer, Mc,Cann & Millett, Kansas City, for respondent.

FINCH, Judge.

This is an original proceeding in mandamus which seeks to compel respondent judge to hear and determine on its merits a motion by which relator sought dismissal of a suit for damages on the basis of the equitable doctrine of forum non conveniens. We make our alternative writ peremptory.

One William Michael Scantlin on May 12, 1969, filed suit in the Circuit Court of Jackson County, Missouri, seeking damages of $100,000 under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq.) for alleged injuries suffered by him on or about July 29, 1966, at Liberal, Kansas, while employed by relator as a switchman. Relator filed a verified motion to dismiss said suit based on the doctrine of forum non conveniens. The motion state that Liberal, Kansas, where the accident occurred, is more than 400 miles from Kansas City, that all witnesses to the accident reside at Liberal, Kansas, and that the medical witnesses live at Liberal or at Hayes, Kansas, which is 260 Miles from Kansas City. It also alleged that relator would have considerable expense if it were necessary to bring the witnesses to Kansas City and house them for a trial in the Circuit Court of Jackson County. Relator railroad offered to waive any right to plead and rely on any period of limitation applicable to plaintiff's cause of action if its motion to dismiss should be granted.

In opposition to the motion to dismiss, plaintiff Scantlin filed verified suggestions in which he contended that the doctrine was not applicable because controlling law gave him the right to bring and try his case in Missouri. He further stated that in any event the facts were such that this would not be a proper case for application of the doctrine because there were just four eyewitnesses to the accident, the relator could take depositions of the doctors at Liberal and Hayes, Kansas, and there was a nexus with Kansas City in that plaintiff had an examining doctor located in Kansas City.

The trial judge overruled the motion to dismiss in the following order: 'The Motion to Dismiss, filed by defendant on July 10, 1969, is overruled because of the ruling of the Supreme Court in State (ex rel. Southern Ry. Co.) v. Mayfield (362 Mo. 101), 240 S.W.2d 106.' The court obviously concluded and ruled that under Mayfield, cited in his order, he was forbidden from considering and applying the doctrine of forum non conveniens in a F.E.L.A. case.

Relator's application to this court seeks a writ of mandamus to compel respondent judge to hear the motion and then to exercise his discretion and determine whether to dismiss the case. In response thereto, respondent has filed a return and a motion to dismiss. The single issue presented is whether the doctrine of forum non conveniens is available in F.E.L.A. cases in Missouri.

Apparently, the first conscious reference in a Missouri decision to the doctrine of forum non conveniens was in State ex rel. Southern Ry. Co. v. Mayfield, 359 Mo. 827, 224 S.W.2d 105. Two F.E.L.A. cases by nonresident plaintiffs against the nonresident railroad for injuries received in Indiana were filed in the Circuit Court of the City of St. Louis. A motion invoking the doctrine of forum non conveniens and seeking dismissal of the suits was filed. The trial court overruled that motion, saying that the 'Court has no jurisdiction or discretion to entertain or grant such a motion.' Mandamus was sought to compel the trial court to exercise its discretion and rule on the motion to dismiss, but the writ was denied. This court's opinion therein (State ex rel. Southern Ry. Co. v. Mayfield, supra) held that under the cases of Baltimore & Ohio Railroad Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, 136 A.L.R. 1222, and Miles v. Illinois Central Railroad Co., 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129, 146 A.L.R. 1104, a state court could not dismiss a F.E.L.A. case solely on the basis of forum non conveniens. On certiorari, the Supreme Court of the United States vacated the judgment of the Missouri court in Mayfield and remanded the case for futher consideration. Missouri ex rel. Southern Ry. Co. v. Mayfield, 340 U.S. 1, 71 S.Ct. 1, 95 L.Ed. 3. The opinion, written by Mr. Justice Frankfurter, points out that under the privileges and immunities clause Missouri could not allow suits by nonresident Missourians for liability under F.E.L.A. arising out of conduct outside Missouri, but discriminatorily deny access to its courts to a non-resident who is a citizen of another state. However, it goes on to hold that the Kepner and Miles cases (cited by the Missouri Supreme Court) do not limit the power of a state to deny access to its courts to persons seeking recovery under F.E.L.A. cases if, in similar cases, it also denies resort to its courts and if it enforces its policy impartially so as not to involve discrimination against F.E.L.A. cases and so as not to offend against the privileges and immunities clause of the federal Constitution (Art. IV, § 2). In so ruling, the opinion states, 340 U.S. l.c. 4, 71 S.Ct. l.c. 2, that 'if a State chooses to '(prefer) residents in access to often overcrowded Courts' and to deny access to all nonresidents, whether its own citizens or those of other States, it is a choice within its own control. This is true also of actions for personal injuries under the Employers' Liability Act. Doublas v. New York, New Haven R. Co., 279 U.S. 377, 387, 49 S.Ct. 355, 356, 73 L.Ed. 747. Whether a State makes such a choice is, like its acceptance of rejection of the doctrine of forum non conveniens, a question of State law not open to (federal) review.' Accordingly, the principal opinion remanded the case to the Missouri Supreme Court so as to permit it 'to decide the availability of the principle of forum non conveniens in these suits according to its own local law.'

Mr. Justice Jackson, concurring in the above disposition of the case, said, 340 U.S. l.c. 5, 71 S.Ct. l.c. 3: 'A federal court in Missouri would now be free to decline to hear this case and could transfer it to its proper forum. Certainly, a State is under no obligation to provide a court for two nonresident parties to litigate a foreign-born cause of action when the Federal Government, which creates the cause of action, frees its own courts within that State from mandatory consideration of the same case.'

On remand, the case again was heard by the Missouri Supreme Court. State ex rel. Southern Ry. Co. v. Mayfield, 362 Mo. 101, 240 S.W.2d 106. , in that opinion the court held the doctrine was not available, saying, 240 S.W.2d .l.c. 109: 'Since the policy of this state has been, and is, to allow citizens of Missouri (resident and non-resident) to bring and maintain suits under the Federal Employers' Liability Act in the courts of this state, we cannot bar citizens of other states from doing likewise.' While the above statement referred to F.E.L.A. cases, the net effect of that decision was to indicate that the doctrine of forum non conveniens would not be available at all in Missouri because in the course of the opinion the court, using general language rather than words limited to F.E.L.A. cases, stated, 240 S.W.2d l.c. 108: 'The policy of this state has been to bar none of its citizens from its courts where there is proper venue and jurisdiction of the parties and subject-matter, and this applies to citizens who are residents as well as nonresidents.'

However, five years later, in Elliott v. Johnston, 365 Mo. 881, 292 S.W.2d 589, this court adopted and applied the doctrine of forum non conveniens. In that case residents of Kansas brought six suits in the Circuit Court of Vernon County, Missouri, against another resident of Kansas for personal injuries and loss of services arising out of an automobile accident which occurred in Crawford County, Kansas. The trial court applied the doctrine and dismissed the suits. On appeal that action was affirmed. We are not concerned here with the particular facts which the court found justified application of the doctrine in that case. The important thing for our purpose is that the court adopted and applied the doctrine in suit by nonresidents...