Opinion
Nos. 41461 and 41558.
May 14, 1951. Rehearing Denied, June 11, 1951.
Consolidated mandamus actions. Alterative writs were issued to compel two circuit judges to exercise discretion over motions raising the issue of forum non conveniens where causes of action under the Federal Employers' Liability Act arose 700 and 647 miles from the St. Louis court where the actions were filed, the plaintiffs being citizens of other states. The first opinion was set aside by the Supreme Court of the United States on the ground that the federal law did not prevent the Missouri courts from invoking the doctrine of forum non conveniens it done on a non-discriminatory basis. The second opinion holds that such doctrine would be contrary to the public policy of Missouri, and orders the writs quashed.
1. CONSTITUTIONAL LAW: Venue: Federal Employers' Liability Act: Forum Non Conveniens: Ruling of Supreme Court of United States. When the prior opinion was appealed to the Supreme Court of the United States said court held that there was nothing in the federal law that compels Missouri to open its courts to cases arising under the Federal Employers' Liability Act, but if it does so, the same rights must be accorded to citizens of other states as are given to citizens of Missouri.
2. VENUE: Parties: No Citizens Barred from Courts. It is the policy of Missouri 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 non-residents.
3. MANDAMUS: Venue: Parties: Federal Employers' Liability Act: Foreign Actions in Missouri Courts: Doctrine of Forum Non Conveniens Not Applicable: Writs Quashed. An action arising under the laws of another state may be brought in Missouri. The doctrine of forum non conveniens may not be invoked to prevent actions from being maintained in Missouri under the Federal Employers' Liability Act where the cause of action arose at a distant locality outside the state. The alternative writ to compel the respective trial judges to exercise discretion as to motions invoking such doctrine should be quashed.
WRITS QUASHED.
Fred W. Schwarz and Bruce A. Campbell for relator Southern Railway Company; Fordyce, Mayne, Hartman, Renard Stribling, Kramer, Campbell, Costello Wiechert; H.G. Hedrick of counsel. John H. Lathrop and Sam D. Parker for relator Atchison, Topeka Santa Fe Railway Company.
(1) This court has been freed of any compulsion of Federal law. State ex rel. Southern Ry. Co. v. Mayfield, 340 U.S. 1; Gulf Oil Corp. v. Gilbert, 330 U.S. 501; Mooney v. Denver Rio Grande Western Railroad Co., 221 P.2d 628. (2) This court has inherent power to apply the doctrine of forum non conveniens. Koster v. Lumberman's Mut. Cas. Co., 330 U.S. 518; Gulf Oil Corp. v. Gilbert, 330 U.S. 501; Chicago, B. Q. Ry. Co. v. Gildersleeve, 219 Mo. 170, 118 S.W. 86; State ex rel. South Mo. Pine Lumber Co. v. Deering, 180 Mo. 53, 79 S.W. 454; Sec. 645, R.S. 1939; Dickey v. Volker, 321 Mo. 235, 11 S.W.2d 278; Hawkinson v. Johnston, 122 F.2d 724; The International Law of Jurisdiction by Sir Andrew Gibb. 7 R.C.L. 1035; Holmes v. Wainright, 3 E. 328; Logan v. Bank of Scotland, 1 K.B. 141; 29 Columbia Law Review 1; 29 Illinois Law Review 890; Williams v. Green Bay Western R. Co., 326 U.S. 549; Whitney v. Madden, 79 N.E.2d 593; Murnan v. Wabash Ry. Co., 158 N.E. 508; Mooney v. Denver Rio Grande Western R. Co., 221 P.2d 629; Jackson Sons v. Lumberman's Mut. Cas. Co., 168 A. 895; Anderson v. Delaware, L. W.R. Co., 11 A.2d 607; Universal Adj. Corp. v. Midland Bank Ltd., 184 N.E. 152; Trojan Engr. Corp. v. Green Mountain Power Corp., 200 N.E. 117; Hagen v. Viney, 169 So. 391; Horner v. Pleasant Mining Co., 107 P.2d 989; Stewart v. Lichtenberg, 86 So. 734; Union City Transfer v. Fields, 199 So. 206; Strickland v. Humble Oil Refg. Co., 11 So.2d 820; Grovey v. Washington Natl. Life Ins. Co., 119 S.W.2d 503; Van Denburgh v. Tungsten Reef Mines, 63 P.2d 647; Foss v. Richards, 139 A. 313. (3) The Missouri law does not prohibit the application of forum non conveniens. The cases relied on by the respondents do not sustain the asserted proposition that Missouri courts do not possess inherent power to relinquish jurisdiction under the principles of forum non conveniens. Wells v. Davis, 303 Mo. 388, 261 S.W. 58; State ex rel. Foraker v. Hoffman, 309 Mo. 625, 274 S.W. 362; Hoffman v. State ex rel. Foraker, 274 U.S. 21; Shaw v. Chicago Alton Railroad Co., 314 Mo. 123, 282 S.W. 416; McGinnis v. Mo. Car Foundry Co., 174 Mo. 225, 73 S.W. 586; Lee v. Mo. Pac. Ry. Co., 195 Mo. 400, 92 S.W. 614; Miller v. Hoover, 121 Mo. App. 568, 97 S.W. 210; Davis v. Farmers' Cooperative Equity Co., 262 U.S. 312; Bright v. Wheelock, 323 Mo. 840, 20 S.W.2d 684; Kendall v. Dunn, 71 W. Va. 262; Michigan Central R. Co. v. Mix, 278 U.S. 492; Santa Fe v. Wells, 265 U.S. 101; McCleary v. Railroad, 264 S.W. 376; In re Rash Estate, 256 S.W. 525; Bales v. Wabash, 271 S.W. 851; Tabor v. Nut Co., 274 S.W. 911; Douglas v. Railroad Co., 279 U.S. 377; Secs. 1163, 1180, R.S. 1919; Sec. 548, R.S. 1909. (4) The purported holding of compulsory retention of jurisdiction in suits between non-residents in State ex rel. Pacific Mutual Life Ins. Co. v. Grimm, 143 S.W. 483, 239 Mo. 135, is without foundation on the authority cited, or on principle. State ex rel. Pacific Mut. Life Ins. Co. v. Grimm, 143 S.W. 483, 239 Mo. 135; Secs. 547, 548, R.S. 1899; Laws 1905, p. 95; Sec. 507.20, R.S. 1949; Vawter v. Mo. Pac. Ry. Co., 84 Mo. 679; Oates v. Union Pacific Ry. Co., 104 Mo. 514, 16 S.W. 487; McGinnis v. Missouri Car Foundry Co., 174 Mo. 225, 73 S.W. 586; Casey v. Hoover Wrought Iron Bridge Co., 197 Mo. 62, 94 S.W. 982; Newlin v. Railroad, 222 Mo. 375, 121 S.W. 125; State v. Mayfield, 340 U.S. 1. (5) Article 1, Section 14: The "free access" clause of the Missouri Constitution does not compel the courts to allow the maintenance of all cases where jurisdiction and venue exist and has not been so construed by this court. Other states with the same constitutional provisions recognize and apply the doctrine of forum non conveniens. Missouri Constitution, Art. 1, Sec. 14; Illinois Constitution, Art. II, Sec. 19; Utah Constitution, Art. I, Sec. 11; Oregon Constitution, Art. I, Sec. 10; Massachusetts statutes, first part Art. XI; Florida Constitution, Art. 1, Sec. 4; Louisiana Constitution (1920), Art. 6; Mississippi Constitution; Maine Constitution, Art. 1, Sec. 1 a; Whitney v. Madden, 79 N.E.2d 593; Mooney v. D.R.G. W.R. Co., 221 P.2d 628; Horner v. Pleasant Mining Co., 107 P.2d 989; Universal Adj. Corp. v. Midland Bank Ltd., 184 N.E. 152; Hagen v. Viney, 169 So. 391; Stewart v. Lichtenberg, 86 So. 734; Strickland v. Humble Oil Refining Co., 11 So.2d 820; Foss v. Richards, 139 A. 313; (6) Missouri courts do not always retain cases even though jurisdiction and venue exist. Carey v. Schmeltz, 221 Mo. 132, 119 S.W. 946; Maxey v. Railey Bros. Banking Co., 57 S.W.2d 1091; Mosely v. Empire Gas Fuel Co., 313 Mo. 225, 281 S.W. 762; State ex rel. v. Denton, 229 Mo. 187, 129 S.W. 709; State ex rel. v. Shane, 245 Mo. 113, 149 S.W. 479; In re Franz' Estate, 346 Mo. 1149, 145 S.W.2d 400; State ex rel. v. Ellison, 208 S.W. 439; State ex rel. v. McLaughlin, 170 S.W.2d 705. (7) The principle of forum non conveniens is an established rule of the administration of justice and inures to the benefit of the Missouri courts' litigants and taxpayers. 27 Texas Law Review, 702-3; Collard v. Beech, 81 A.D. 582, 81 N.Y.S. 619; Atchison, Topeka Santa Fe Ry. Co. v. Andrews, 88 N.E.2d 364; Kelly v. Thompson, Cir. Ct. of St. Clair County, Ill., Appendix; Jergins, Admx. v. Atchison, Topeka Santa Fe Ry. Co., Superior Ct. of the County of Los Angeles, Cal., Appendix; Martin v. Atchison, Topeka Santa Fe Ry. Co., Superior Ct. of the County of Los Angeles, Appendix; 28 U.S.C.A. 1404(a).
Joseph B. McGlynn and Roberts P. Elam for respondent Waldo C. Mayfield, Judge; Harvey B. Cox and Roberts P. Elam for respondent David J. Murphy, Judge; Jerome F. Duggan, William F. Smith and Cox Cox of counsel.
(1) The alternative writs of mandamus herein were improvidently granted and must be quashed, because the courts of Missouri have no power to dismiss an action under the doctrine of forum non conveniens, and, therefore, the Circuit Court of the City of St. Louis had no jurisdiction to entertain or grant relator's motions based upon that doctrine in the Blevins and Seachris cases. By virtue of the constitutional and statutory provisions of this state, the doctrine of forum non conveniens is no part of the law of this state. State ex rel. Southern Ry. Co. v. Mayfield, 340 U.S. 1, 71 S.Ct. 1; State ex rel. Southern Ry. Co. v. Mayfield, 359 Mo. 827, 224 S.W.2d 105; Ex parte State ex rel. Southern Ry. Co., 47 So.2d 249; Ex parte State ex rel. Atlantic Coast Line Ry. Co., 47 So. 251; Sec. 507.020, R.S. 1949. (2) The constitutional and statutory provisions of this state having given citizens of this state access to its courts for the enforcement of transitory actions for damages for personal injuries arising outside the state, irrespective of the residence of the parties, and to deprive citizens of other States similar access to the courts of this state would violate the "privileges and immunities" and "due process of law" clauses of the Federal Constitution. State ex rel. Southern Ry. Co. v. Mayfield, 359 Mo. 827, 224 S.W.2d 105; State ex rel. Southern Ry. Co. v. Mayfield, 340 U.S. 1, 71 S.Ct. 1. (3) The doctrine of forum non conveniens is neither necessary to the administration of justice nor without disadvantages and dangers. Finley v. Smith, 352 Mo. 465, 178 S.W.2d 326.
These are two original proceedings in mandamus, seeking to compel two trial courts in the City of St. Louis to exercise discretion in ruling upon motions to dismiss under the doctrine of forum non conveniens. Each of these cases in St. Louis was brought under the Federal Employers' Liability Act. (45 U.S.C.A. Sec. 51 et seq.) [107] The first case there was filed by Lelia M. Blevins, Administratrix of her husband's estate, seeking to recover $100,000 for his death. She was a resident of Tennessee, was appointed administratrix by the appropriate county court of Tennessee, her deceased husband had been a resident of Tennessee, and the alleged act of negligence occurred near the boundary between the states of Virginia and Tennessee, some 700 miles from St. Louis. The defendant, Southern Railway Company, was a Virginia Corporation.
The second case filed in the circuit court of the City of St. Louis was by Floyd P. Seachris. He was a citizen of Oklahoma, and the defendant in that suit, the Atchison, Topeka and Santa Fe Railway Company, was a Kansas corporation. The alleged injuries, for which he sought damages in the sum of $100,000.00 occurred at Waynoka, Oklahoma, approximately 647 miles from St. Louis.
Each of the defendants in these cases maintained agents in the City of St. Louis upon whom lawful service could be and was had. In each of these cases, a motion was filed to dismiss the actions on the ground of an inappropriate forum within the doctrine of forum non conveniens. In the case against the Southern Railway Company, the trial court made the following order:
"Defendant's motion to dismiss upon the ground of forum non conveniens denied upon the sole ground that in the opinion of the Court, the Court has no jurisdiction or discretion to entertain or grant such a motion."
A similar order was made in the case against The Atchison, Topeka Santa Fe Railway. Each of these defendants has filed a petition in this court seeking a writ of mandamus commanding the circuit judges in St. Louis City to exercise their discretion in passing upon the motions. Alternative writs were issued. These two cases were consolidated in this court because the question in each is identical. The causes were argued here and in an opinion dated October 10, 1949, this court quashed the alternative writs it had issued. State ex rel. Southern Railway Co. v. Mayfield, Judge. State ex rel. Atchison, Topeka and Santa Fe Railway Co. v. Murphy, Judge, 359 Mo. 827, 224 S.W.2d 105.
By certiorari, the Supreme Court of the United States took jurisdiction of the cases for review "because they involved questions important to the enforcement of the Federal Employers' Liability Act by the courts of the States." The Supreme Court of the United States vacated the judgment of this court and remanded it for further proceedings because it appeared to the Supreme Court of the United States that it was not clear, from the opinion of this court, whether this court "did not deem itself bound to deny the motions for dismissal on the score of forum non conveniens by view of the demands of our decisions in Baltimore Ohio R. Co. v. Kepner, 314 U.S. 44 and Miles v. Illinois Central R. Co., 315 U.S. 698." The United States Supreme Court said:
"Therefore, if the Supreme Court of Missouri held as it did because it felt under compulsion of federal law as enunciated by this Court so to hold, it should be relieved of that compulsion. It should be freed to decide the availability of the principle of forum non conveniens in these suits according to its own local law. To that end we vacate the judgment of the Supreme Court of Missouri and remand the cause to that Court for further proceedings not inconsistent with this opinion."
In its opinion the Supreme Court of the United States further said that the highest court of a state, in determining whether to accept or reject the doctrine of forum non conveniens, in an action based on the Federal Employers' Liability Act, may rest its decision on its own motions of procedural policy "for all causes of action begun in its courts", but that its decision must not infringe on the provisions of the Privileges and Immunities clause of the Constitution of the United States by discriminating against citizens of sister states, (Art. IV, Sec. 2, U.S. Constitution), and must not "involve a discrimination against Employers' Liability Act suits * * *." That a state [108] court may also reject the doctrine of forum non conveniens because it may deem itself compelled by federal law to reject it. The opinion then stated that there was nothing in the Federal Employers' Liability Act to "force a duty" upon the state courts to entertain or retain such litigation "against an otherwise valid execution".
The case is now again before this court in the same condition it was in 1949, when first decided, with the knowledge that in now deciding this case we are not under compulsion of federal law as enunciated by the United States Supreme Court and that we are therefore relieved of that idea, if it were entertained by this court, when the original opinion was written.
The United States Supreme Court opinion further stated:
"Therefore, Missouri cannot allow suits by non-resident Missourians for liability under the Federal Employers' Liability Act arising out of conduct outside that State and discriminatorily deny access to its courts to a non-resident who is a citizen of another State."
It was further held that if Missouri chooses to open its courts to all "residents" and deny access to all "non-residents", whether citizens of Missouri or of other states, it may do so, and such a policy may include actions for personal injuries under the Federal Employers' Liability Act.
In other words, there is nothing in the Federal law that compels Missouri to open its courts to cases arising under the Federal Employers' Liability Act. (Douglas v. New York, New Haven Hartford Rd. Co., 73 L.Ed. 747, 279 U.S. 377, 49 S.Ct. 355) but if it does so, the same rights must be accorded to citizens of other states as are given to citizens of this State.
This court said in its previous opinion:
"Also, Missouri permits citizens of this state to file Federal Employers' Liability cases in its courts. To deny the same privilege to citizens of another state would violate Article 4, Section 2, of the Constitution of the United States. * * *
"The Federal Employers' Liability Act does not compel the courts of this state to hear cases arising under that act, but it empowers our courts to do so.
"Since Missouri does allow its citizens to maintain Federal Employers' Liability actions in its courts, (see the many such cases listed in the Missouri Digest, Master and Servant, Key Number 85,) it follows that not to allow citizens of other states the right to file Federal Employers' Liability suits in our state courts would violate Article 4, Section 2, of the Constitution of the United States."
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 non-residents. The Constitution of Missouri, 1875, Art. II, Sec. 10, provided that "courts of justice should be open to every person" and "certain remedy afforded for every injury" and that right and justice "should" be administered without "denial". Our present Constitution (Art. I, Sec. 14) contains the same provision but uses the word "shall" instead of "should".
Section 507.020 R.S. Mo. 1949 declares that whenever a claim exists under the law of another state an "action thereon may be brought in this State" by the person entitled to the proceeds of such action, or by his personal representative, if they are authorized to bring such action under the laws of that other state.
This section was derived from Secs. 856, 857 and 858 Mo. R.S.A., and they have been held to be mandatory. (State ex rel. Pacific Mutual Life Ins. Co. v. Grimm (en banc) 239 Mo. 135, 143 S.W. 483) and in harmony with Article IV Sec. 2 of the Constitution of the United States. In the Grimm case, supra, this court, en banc, said in discussing Secs. 856 and 857 Mo. R.S.A. (then sections 1736 and 1737 R.S. Mo. 1909):
"These statutes were under consideration in the case of Newlin v. Railroad Co., 222 Mo. 375, 121 S.W. 125, and the court there held that these statutes were founded upon comity, and opened the doors of our courts to causes of action accruing under the laws of sister states. [109] Meaning, of course, that the doors were not opened at the discretion of the court, as was formerly the case, but mandatory, in harmony and in keeping with section 2 of article 4 and section 1 of the fourteenth amendment of the Constitution of the United States, * * *."
The case from which we have quoted was an original action in prohibition seeking to prevent the circuit court of St. Louis City from proceeding with a case in which the plaintiff was a citizen and resident of Illinois, and had brought a suit upon an insurance policy on the life of her deceased husband, who in his lifetime, had also been a citizen and resident of Illinois. The insurance contract was made in Illinois. The defendant, Pacific Life Insurance Co., was a California Corporation, licensed to do business in Illinois, Missouri and other states.
A motion to dismiss had been made in the trial court in which every essential element of a motion forum non conveniens was present although the motion was not referred to by its Latin appellation and the trial court or this court did not so designate it. It contained more reasons for its sustention than the motions involved in these cases before us, but was denied by the circuit court. This court in refusing prohibition said:
"It would be both unjust and intolerable for one state of the Union to possess the power and authority to enact a valid statute closing the doors of its courts to citizens of the United States, or of other states, and deny to them the right or privilege of suing in the courts thereof, while the citizens of such state enjoy that right or privilege. To so hold would be not only to nullify the spirit of the provisions of the federal Constitution previously mentioned, but the letter thereof as well."
It cited Chambers v. Baltimore Ohio Railroad Co., 207 U.S. 142, 28 S.Ct. 34, 52 L.Ed. 143, where it was said:
"The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship, and must be allowed by each state to the citizens of all other states to the precise extent that it is allowed to its own citizens. Equality of treatment in this respect is not left to depend upon comity between the states, but is granted and protected by the Federal Constitution. * * *
"But, subject to the restrictions of the Federal Constitution, the state may determine the limits of the jurisdiction of its courts, and the character of the controversies which shall be heard in them. The state policy decides whether and to what extent the state will entertain in its courts transitory actions, where the causes of action have arisen in other jurisdictions. Different states may have different policies, and the same state may have different policies at different times. But any policy the state may choose to adopt must operate in the same way on its own citizens and those of other states. The privileges which it affords to one class it must afford to the other. Any law by which privileges to begin actions in the courts are given to its own citizens and withheld from the citizens of other state is void, because in conflict with the supreme law of the land."
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. Our alternative writs were improvidently issued and should be quashed. It is so ordered. All concur.