Wieser v. Missouri Pacific R. Co.

• Decision Date: 21 October 1983
• Docket Number: No. 57325,57325
• Citation: 456 N.E.2d 98,98 Ill.2d 359,74 Ill.Dec. 596
• Parties: , 74 Ill.Dec. 596 Melva I. WIESER, Adm'x, Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
• Court: Illinois Supreme Court

Page 98

456 N.E.2d 98

98 Ill.2d 359, 74 Ill.Dec. 596

Melva I. WIESER, Adm'x, Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

No. 57325.

Supreme Court of Illinois.

Oct. 21, 1983.

Edward J. Kionka, Carbondale, John E. Norton, Norton, Bonifield & Associates, P.C., Belleville, for Melva I. Wieser.

Walker & Williams, P.C., Belleville, for Missouri Pacific R. Co., a Corporation; David B. Stutsman, Gordon E. Maag, Belleville, of counsel.

RYAN, Chief Justice:

This case arises out of an action filed under the Federal Employers' Liability Act (45 U.S.C. sec. 51 et seq. (1976)). The sole issue raised for our consideration is whether the trial court abused its discretion when it denied defendant's motion to decline jurisdiction based upon the doctrine of forum non conveniens.

Melva I. Wieser, as administratrix of the estate of Thomas R. Wieser, filed a complaint in the circuit court of St. Clair County, Illinois, under the Federal Employers' Liability Act. Melva Wieser was the wife of Thomas R. Wieser, who was employed by the defendant, Missouri Pacific Railroad Company, at its facilities near Wagoner, Oklahoma. On October 13, 1979, Thomas R. Wieser was killed as the result of an automobile accident. He had apparently finished work for the day and was driving in an easterly direction near Muldrow, Oklahoma. Another vehicle crossed the center line and struck his vehicle, causing the fatal injury. At the time of the accident, and when the complaint was filed, plaintiff was a resident of Barling, Arkansas, as was the deceased, her husband.

On January 22, 1981, defendant filed a motion to decline jurisdiction based upon the doctrine of forum non conveniens, and filed an affidavit and a brief in support of this motion. The plaintiff did not file any affidavit or other pleading in opposition to the motion. On May 18, 1982, the trial judge denied defendant's motion to decline jurisdiction. Defendant's petition for leave to appeal under our Rule 306(a)(1)(ii) (87 Ill.2d R. 306(a)(1)(ii)) was denied by the appellate court. We granted defendant's petition for leave to appeal pursuant to Rule 315 (87 Ill.2d R. 315).

Plaintiff has filed a motion with this court requesting leave to supplement the record on appeal. We note that defendant filed a brief, affidavit and exhibits in support of its motion before the trial court. However, no documents of any kind were filed by the plaintiff. In passing on plaintiff's motion to supplement the record, the following sequence of events is significant.

On May 12, 1982, defendant's motion to decline jurisdiction was denied. On June 3, 1982, defendant requested that the record on appeal be prepared. On June 10, 1982, defendant filed its petition for leave to appeal with the appellate court. On June 29, 1982, nearly seven weeks after the trial court denied the motion, the plaintiff filed with the circuit court of St. Clair County a written motion in opposition to defendant's original motion to decline jurisdiction. This motion was never made part of the record on appeal. On May 10, 1983, a year after the trial court denied the defendant's motion, plaintiff filed a motion in this court to supplement the record on appeal by filing in this court a copy of the motion in opposition to defendant's motion to decline jurisdiction which plaintiff had filed in the trial court. In the meantime, the appellate court had denied defendant's petition for leave to appeal, this court had allowed defendant's petition for leave to appeal, briefs for all parties had been filed, including a reply brief filed by defendant, and the case had been set for oral argument.

This is a belated attempt by the plaintiff to bolster what is apparently perceived as a deficient record. This motion was obviously not a part of the record made at the proceedings from which the appeal now before this court was taken. It will not, therefore, be considered by this court. Plaintiff's counsel argues that substantially all of the contents of the motion were argued orally before the trial court prior to the denial of defendant's motion to decline jurisdiction. This is not the proper way to make a record for appeal. Our Rules 321 and 323 (87 Ill.2d Rules 321, 323) provide for the content of the record on appeal. Rule 329 (87 Ill.2d R. 329) sets forth the means by which the record on appeal may be amended. The procedure plaintiff now asks us to approve does not conform to the requirements of our rules. Plaintiff's assertion that these questions were argued orally before the trial court is not convincing. If plaintiff thinks the record is inadequate, the procedure set forth in our rules for amending the record should have been followed. We therefore deny plaintiff's motion to supplement the record.

The doctrine of forum non conveniens presupposes the existence of more than one forum in which jurisdiction may be obtained over the parties and the subject matter of a case, and in which the controversy may be tried. The doctrine furnishes criteria for the choice of the forum. (Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055). The inquiry in any forum non conveniens case centers upon which of several forums is most convenient under the facts of that case. (Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill.2d 111, 56 Ill.Dec. 31, 427 N.E.2d 111; People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill.2d 90, 23 Ill.Dec. 106, 383 N.E.2d 977.) We have this term applied the doctrine intrastate. (Torres v. Walsh (1983), 98 Ill.2d 338, 74 Ill.Dec. 880, 456 N.E.2d 601; Mesa v. Chicago & North Western Transportation Co. (1983), 98 Ill.2d 356, 74 Ill.Dec. 499, 456 N.E.2d 1.) The question is not one of jurisdiction. Even though the forum may have the power to adjudicate the controversy, under the doctrine it may be inappropriate under the facts of that case to do so if there is another forum with jurisdiction of the parties in which the case can be more conveniently tried. As this court stated in Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill.2d 511, 514, 301 N.E.2d 729:

"Forum non conveniens is a doctrine that is founded in considerations of fundamental fairness and sensible and effective judicial administration. In the application of these basic considerations a court may decline jurisdiction of a case 'even though it may have proper jurisdiction over all parties and the subject matter involved' (Whitney v. Madden (1948), 400 Ill. 185, 189, 79 N.E.2d 593, cert. denied, 335 U.S. 828, 69 S.Ct. 55, 93 L.Ed. 382), whenever it appears that there is another forum that can better 'serve the convenience of the parties and the ends of justice.' (Longergan v. Crucible Steel Co. of America (1967), 37 Ill.2d 599, 606, 229 N.E.2d 536.)"

We have held that whether the facts of a particular case require the allowance of a motion to dismiss under the doctrine of forum non conveniens is within the sound discretion of the trial court. The court's decision will be reversed on review if it can be said that in deciding as it did there was an abuse of discretion. Jones v. Searle Laboratories (1982), 93 Ill.2d 366, 373, 67 Ill.Dec. 118, 444 N.E.2d 157; People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill.2d 90, 23 Ill.Dec. 106, 383 N.E.2d 977.

Although the doctrine of forum non conveniens has a long history, its general application crystalized following the decision by the Supreme Court in Gulf Oil Corp. v. Gilbert. (See Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419.) In Gilbert the court discussed the private interests and the public interests that must be balanced in determining the appropriate forum in which the case should be tried. In Adkins v. Chicago, Rock Island & Pacific R.R. Co. this court also referred to the factors that must be balanced in considering a motion to decline jurisdiction. This court stated:

"Factors to be considered in disposing of a motion to dismiss forum non conveniens include the relative capacities of the two courts to provide a fair trial, the relative inconvenience to witnesses and parties, and the burden placed upon the taxpayers and residents of the jurisdiction to which the cause of action is transported." (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill.2d 511, 514, 301 N.E.2d 729.)

These factors likewise contain the consideration of both private and public interest.

In Gilbert the court also stated that unless the balance is strongly in favor of defendant, the plaintiff's choice of forum should rarely be disturbed. This court has recognized the deference that should be paid to the plaintiff's choice of forum. (See Jones v. Searle Laboratories (1982), 93 Ill.2d 366, 372-73, 67 Ill.Dec. 118, 444 N.E.2d 157; Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill.2d 111, 118, 56 Ill.Dec. 31, 427 N.E.2d 111.) This deference to plaintiff's choice of forum is commonly referred to as an unequal balancing test.

Plaintiff relies heavily on the language of Gilbert and Espinosa in asserting that plaintiff's right to choose the forum should rarely be disturbed. The statement in Gilbert to this effect has generally been stated without a discussion or an examination of its rationale. The test is somewhat differently stated, however, in Restatement (Second) of Conflicts of Law sec. 84(c) (1971). In comment c it is stated that since it is for the plaintiff to choose the place of suit, his choice of forum should not be disturbed except for weighty reasons. In Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill.2d 144, 152 N.E.2d 385, this court placed an extremely strict construction on the plaintiff's right to choose the forum in a Federal Employers' Liability Act case (FELA) and held that "only where it is shown that plaintiff is motivated purely by vexation and harassment will an F.E.L.A. case be dismissed." (Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill.2d 144, 174, 152...