Winsor v. United Air Lines, Inc.

• Decision Date: 12 September 1958
• Citation: 2 Storey 161,52 Del. 161,154 A.2d 561
• Court: Delaware Superior Court
• Parties: , 52 Del. 161 Charles H. WINSOR, Individually and as Administrator of the Estate of Alma L. Winsor, Deceased, Plaintiff, v. UNITED AIR LINES, INC., Defendant.

Page 561

154 A.2d 561

2 Storey 161, 52 Del. 161

Charles H. WINSOR, Individually and as Administrator of the Estate of Alma L. Winsor, Deceased, Plaintiff, v. UNITED AIR LINES, INC., Defendant.

Superior Court of Delaware, New Castle County.

Sept. 12, 1958.

On defendant's motion to dismiss. Motion granted.

Stewart Lynch, Wilmington, and Theodore E. Wolcott, New York City, for plaintiff.

Harvey S. Kronfeld, Wilmington, for defendant.

CHRISTIE, Judge.

Plaintiff's wife was killed in the crash of a United Air Lines plane on November 1, 1955, in Colorado. Plaintiff brings this action in his own name and as administrator of his wife's estate, alleging negligence on the part of United as to the crash and as to the manner in which United returned the remains of the deceased to plaintiff's place of residence in Newfoundland.

The action was commenced in this Court on August 30, 1957, and upon defendant's petition, it was removed on September 23, 1957, to the United States District Court for the District of Delaware. Plaintiff there moved to remand the case to this Court, and on January 30, 1958, that motion was granted on the basis that the existence of a federal question was doubtful. D.C., 159 F.Supp. 856.

On March 3, 1958, defendant filed a motion in this Court to dismiss the action or stay proceedings until the United States District Court for the District of Colorado finally disposes of a substantially similar action between the same parties which is pending there. The request for such action in this Court is bottomed in the doctrine of forum non conveniens. It is claimed that the application of such doctrine to this case is particularly appropriate in view of the special circumstances surrounding the case and also in view of the history of the case now pending in the United States District Court in Colorado.

The Colorado case was originally filed in the United States District Court for the District of New York in February, 1957. In that case, defendant moved that Court under 28 U.S.C. § 1404(a) to dismiss the action or transfer it to the United States District Court for the District of Colorado for the convenience of the parties and witnesses and in the interests of justice. The motion was argued before Judge Mortimer W. Byers of the New York District Court. In the brief and in oral argument, plaintiff resisted any transfer, but urged that if the case were to be transferred anywhere, the Court should transfer it to the District Court in Delaware and not to the District Court in Colorado. In an opinion dated June 25, 1957, the Court holds that the case should be transferred to the District Court in Colorado. D.C., 153 F.Supp. 244.

After the opinion was filed plaintiff filed a proposed order wherein he sought leave to dismiss his action in the New York District Court in order to file an action in the appropriate Court of the State of Delaware. That Court rejected plaintiff's request and instead entered an order transferring the pending action to the District Court in Colorado. Such action is still pending in that District. On July 29, 1958, the United States District Court in Colorado entered an order denying plaintiff's motion to dismiss the federal case. The same order denied a motion by defendant to restrain plaintiff from prosecuting 'another action involving the same issues elsewhere' (i. e., this action in this Court).

Defendant argues first that the issues raised by its motions in this case are substantially similar to those raised and decided in its favor in the New York District Court. Plaintiff in turn insists that the decision of the United States District Court in New York was based upon a federal statute not applicable to state courts (28 U.S.C. § 1404(a)) and upon the federal cases decided pursuant thereto which are not applicable here. It is apparent that the issues raised in the New York case are not technically identical to those raised here, that the federal statute does not apply here and that much of the federal case law is not directly applicable to the motions now pending in this Court. Nevertheless, the decision of the United States District Court did involve many of the same considerations which are here relevant. Although the decision of the District Court has been considered in arriving at a decision, I have reconsidered all of the points there decided in the light of the much less clearly defined doctrine of forum non conveniens as recognized in state courts.

Defendant points out that several other cases arising out of the same airplane crash were started in various United States District Courts and that all of these have been either dismissed or transferred to the District Court in Colorado. Again, this is indicative of the treatment which might be afforded to this case in the federal courts. Such treatment of the other cases is of importance, but does not necessarily indicate that a similar result must follow here. This Court does not have the benefit of a statute on this point nor does it have a right to transfer the case. Furthermore, this case raises several issues not present in any of the other cases arising out of the accident.

The doctrine of forum non conveniens or its statutory successor became an important part of our federal law after the decisions of the United States Supreme Court in Gulf Oil Corp. v. Gilbert, 1947, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 and Koster v. Lumbermens Mutual Casualty Co., 1947, 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067.

Although the federal law was thereafter codified in what is now 28 U.S.C. § 1404(a), the Gulf case was decided without such statutory background. Thus, the general principles and tests laid down in the Gulf case are often referred to and followed by state courts. The Supreme Court in the Gulf case indicated that the following factors were important in determining whether a Court before which a case had been brought should decline to hear the case on account of the existence of a more convenient forum:

'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. It is often said that the plaintiff may not, by choice of an inconvenient forum, 'vex,' 'harass,' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the...