Zurick v. Inman

• Decision Date: 29 March 1968
• Citation: 221 Tenn. 393,426 S.W.2d 767,25 McCanless 393
• Parties: , 221 Tenn. 393 Thomas E. ZURICK, Petitioner, v, Ada West INMAN, Respondent.
• Court: Tennessee Supreme Court

Page 767

426 S.W.2d 767

25 McCanless 393, 221 Tenn. 393

Thomas E. ZURICK, Petitioner, v, Ada West INMAN, Respondent.

Supreme Court of Tennessee.

March 29, 1968.

Bishop, Thomas, Leitner, Mann & Milburn, Chattanooga, for petitioner.

Wagner, Weeks & Nelson, Chattanooga, for respondent.

OPINION

DYER, Justice.

This case involves the application of the doctrine of forum non conveniens in a transitory tort action. The trial court applying the doctrine dismissed the case. The Court of Appeals reversed the action of the trial court and we granted certiorari. In this opinion the parties will be referred to as in the trial court; that is, petitioner here, Thomas E. Zurick, as defendant, and respondent here, Ada West Inman, as plaintiff.

The plaintiff is a resident of Dade County, Georgia. The defendant is a resident of Birmingham, Alabama. On March 22, 1966 the vehicles of these parties were involved in an accident in Dade County, Georgia, the situs of the accident being about nine miles from the boundary line between Dade County and Hamilton County, Tennessee. After the accident plaintiff was brought to the hospital in Chattanooga, Hamilton County, Tennessee, for treatment of injuries.

The next day, March 23, 1966, in an action for damages by plaintiff arising out of this accident, personal service was had on defendant in Hamilton County, Tennessee. To this summons issued out of the Circuit Court of Hamilton County, Tennessee, defendant filed a plea in abatement with affidavit attached attacking the jurisdiction of the court on the ground of forum non conveniens. To this action plaintiff filed a replication with affidavits attached. These pleadings with affidavits make up the entire record in this case.

In Cotton v. Louisville & Nashville R.R. Co., 14 Ill.2d 144, 152 N.E.2d 385 (1958), the court described this doctrine in the following language:

Generally speaking, Forum non conveniens deals with the discretionary power of the court to decline to exercise a possessed jurisdiction whenever, because of varying factors, it appears that the controversy may be more suitably or conveniently tried elsewhere. 152 N.E.2d at 388.

In Universal Adjustment Corporation v. Midland Bank, Limited, of London, England, et al., 281 Mass. 303, 184 N.E. 152, 87 A.L.R. 1407 (1933), the court in regard to the doctrine stated:

The governing principle in such circumstances is that the parties have standing in the courts of this Commonwealth, not as matter of strict right but only as matter of comity. * * * Where it appears that complete justice cannot be done here, that the defendant will be subjected to great and unnecessary inconvenience and expense, and that the trial will be attended, if conducted here with many if not insuperable difficulties which all would be avoided without special hardship to the plaintiff if proceedings are brought in the jurisdiction where the defendant is domiciled, where service can be had, where the cause of action arose and where justice can be done, our courts decline to take jurisdiction on the general ground that the litigation may more appropriately be conducted in a foreign tribunal. Stated succinctly, the principle is that where in a broad sense the ends of justice strongly indicate that the controversy may be more suitably tried elsewhere, then jurisdiction should be declined and the parties relegated to relief to be sought in another forum. 184 N.E. at 158.

The origin of the doctrine is somewhat obscure and from our research it appears to have originated in Scotland where a court having jurisdiction could refuse to hear the case when the ends of justice would be best served by having it tried in another forum. Brown v. Cartwright, 20 Scot.L.Rev. 818 (1883); Williamson v. North Eastern R.R., 21 Scot.L.Rev. 421 (1884). Prior to 1929 this doctrine at least by its latin appellation rarely appeared in American reports. In that year (1929) Blair published an article on the doctrine in 29 Col.Rev. 1, wherein he said many American courts had for some time been applying the doctrine without referring to it by its latin appellation. It is now generally agreed this article by Blair brought the term forum non conveniens into American law. See Barrett, The Doctrine of Forum non Conveniens, 35 Calif.L.Rev. 380 (1947). Blair in his article may have had reference to Tennessee in light of our case of Avery v. Holland, 2 Tenn. 71 (1806). In the Avery case the language of Mr. Justice White in his concurring opinion is significant in that his language is similar to that used by present day courts on this doctrine. This language is as follows:

* * * if it appears upon the face of the pleadings that both of the litigant parties are foreigners and a foreign contract, we ought not to interpose. By the nature of all governments, courts were constituted to administer justice in relation to their own citizens; and not to do the business of citizens or subjects of other states. The judges of their own state are employed, and paid for that purpose.

To encourage the resort of foreigners to our courts would be doing injustice to our own citizens who have business here to be attended to. 2 Tenn. at 71.

The early acceptance of this doctrine by the several states may have been retarded by Section 2 of Article 4 of the Constitution of the United States under which the citizens of each state are entitled to the privileges and immunities of the citizens of the several states. In Douglas v. New York, New Haven & H. R.R. Co., 279 U.S. 377, 49 S.Ct. 355, 73 L.Ed. 747 (1928), the court apparently took the position Article 4 was not violated since dismissing of suits was based on residence and not citizenship. In State of Missouri ex rel. Southern Railway Co. v. Mayfield, 340 U.S. 1, 71 S.Ct. 1, 95 L.Ed. 3 (1950), the court held that acceptance or rejection of the doctrine was a matter of the State to decide and such would not violate Article 4 unless there was discrimination against citizens of other states. Today the application of the doctrine so as to refuse jurisdiction in an action brought by a citizen of another state will not violate Article 4 if jurisdiction would also have been refused had the plaintiff been a citizen of the forum state. This position is well stated in 20 Am.Jur.2d, Courts, Section 181, as follows:

Thus although courts of a particular state may, because of the crowded calendars, refused, under the doctrine of forum non conveniens, to exercise jurisdiction in actions brought by nonresidents, they must apply this to citizens and non-citizens of the state indiscriminately. They cannot, without violating the privileges and immunities clause, apply this policy to nonresident noncitizens but not to nonresident citizens.

Our research indicates several of our sister states have not considered the doctrine. The following states have considered and applied the doctrine:

Arkansas: Running v. Southwestern Freight Lines, Inc., 227 Ark. 839, 303 S.W.2d 578 (1957), Hicks v. Wolfe, 228 Ark. 406, 307 S.W.2d 784 (1957), holding, however, that the doctrine would not be applied as between counties of the same state.

Ohio: Barnett v. Baltimore & Ohio R. Co., 119 Ohio App. 329, 200 N.E.2d 473 (1963).

California: Price v. Atchison, Topeka & Santa Fe Ry. Co., 42 Cal.2d 577, 268 P.2d 457, 43 A.L.R.2d 756 (1954).

Florida: Atlantic Coast Line Railroad Co. v. Ganey, 125 So.2d 576 (Fla.App.1960); Southern Railway Co. v. Bowling, 129 So.2d 433 (Fla.App.1961).

Illinois: Whitney v. Madden, 400 Ill. 185, 79 N.E.2d 693 (1948); Cotton v. Louisville and Nashville Railroad Co., 14 Ill.2d 144, 152 N.E.2d 385 (1958).

Oklahoma: St. Louis-San Francisco Ry. Co. v. Superior Court, 276 P.2d 773 (Okl.1954); St. Louis-San Francisco Ry. Co. v. Superior Court, 290 P.2d 118 (Okl.1955); Atchison, Topeka & Santa Fe Ry. Co. v. District Court, 298 P.2d 427 (Okl.1956).

Louisiana: Stewart v. Litchenburg, 148 La. 195, 86 So. 734 (1920); Union City Transfer v. Fields, 199 So. 206 (La.App.1940).

Maine: Foss v. Richards, 126 Me. 419, 139 A. 313 (1927).

Minnesota: Hill v. Upper Mississippi Towing Corp., 252 Minn. 165, 89 N.W.2d 654 (1958); Johnson v. Chicago Burlington & Quincy R. Co., 243 Minn. 58, 66 N.W.2d 763 (1954).

Massachusetts: Universal Adjustment Corp. v. Midland Bank, Ltd. of London, 281 Mass. 303, 184 N.E. 152, 87 A.L.R. 1407 (1933).

New Hampshire: Jackson & Sons v. Lumbermen's Mutual Cas. Co., 86 N.H. 341, 168 A. 895 (1933).

New York: DeLaBouvillerie v. De Vienne, 300 N.Y. 60, 89 N.E.2d 15, 48 A.L.R.2d 798 (1949); Taylor v. Interstate Motor Freight System, 285 App.Div. 1010, 139 N.Y.S.2d 130 (1955).

New Jersey: Anderson v. Delaware, L. & W.R. Co., 18 N.J.Misc. 153, 11 A.2d 607 (1940); Vargas v. A. H. Bull S.S. Co., 25 N.J. 293, 135 A.2d 857 (1957); Gore v. United States Steel Corp., 15 N.J. 301, 104 A.2d 670, 48 A.L.R.2d 841 (1954).

Utah: Mooney v. Denver & R.G.W.R. Co., 118 Utah 307, 221 P.2d 628 (1950).

Texas: Forcum-Dean Co. v. Missouri Pacific Railroad Co., 341 S.W.2d 464 (Tex.Civ.App.1960).

Pennsylvania: Plum v. Tampax, Inc., 399 Pa. 553, 160 A.2d 549 (1960); Radio Corp. of America v. Rotman, 411 Pa. 630, 192 A.2d 655 (1963).

Several states have considered and refused to apply the doctrine:

Washington: Lansverk v. Studebaker-Packard Corp., 54 Wash.2d 124, 338 P.2d 747 (1959).

Missouri: State ex rel. Southern Ry. Co. v. Mayfield, 362 Mo. 101, 240 S.W.2d 106 (1951).

Nebraka: Herrmann v. Franklin Ice Cream Co., 114 Neb. 468, 208 N.W. 141 (1926).

Wisconsin: Bourestom v. Bourestom, 231 Wis. 666, 285 N.W. 426 (1939); Eingartner v. Illinois Steel Co., 94 Wis. 70, 68 N.W. 664, 34 L.R.A. 503 (1896).

Under the holdings in the above cited cases applying the doctrine it is generally held that courts, absent statutory restrictions, have inherent authority to apply the doctrine. Even in some of the cases rejecting the doctrine the rejection is not on lack of authority, but for other reasons. This power is inherent in the courts since in some cases...