Atlantic Coast Line Railroad v. Wiggins , 77 Ga. App. 756 ( 1948 )

Under the provisions of our Constitution (Code, Ann., § 2-104), which provides that "No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State," the trial courts of this State are required to exercise jurisdiction of an action brought by a resident of Georgia, as administrator of a decedent who was a resident of Georgia, against a non-resident corporation having an office, agent, and place of doing business in Georgia, upon a cause of action arising in another State, and the rule of forum non conveniens could not be invoked by the defendant to oust the jurisdiction of the courts of this State.

DECIDED OCTOBER 14, 1948. James A. Wiggins, as administrator of the estate of Mrs. Mary Wiggins Valentine, sued the Atlantic Coast Line Railroad in Fulton Superior Court to recover damages for the tortious death of Mrs. Valentine. The action was brought under South Carolina law for the benefit of the parents of the deceased. The petition alleged that the defendant corporation had an office, agent, and place of doing business in Fulton County, Georgia. It also alleged that the deceased was a resident of Georgia at the time of her death; that James A. Wiggins was appointed administrator in Georgia; and that he was a resident of the State of Georgia at the time of the institution of this action and at all times since.

The defendant filed a plea of forum non conveniens, which alleged: "(4) Defendant shows that the deceased for whose death this action is brought lost her life in an accident occurring on a crossing known as the Liberty Hill crossing in said Charleston County, State of South Carolina. This defendant shows that the plaintiff herein alleges that the view of the crossing was obstructed by an embankment and bushes, preventing the driver of the automobile in which the deceased was riding from seeing the crossing. And defendant alleges that it is alleged that said crossing is in a highly congested area. Defendant alleges in this connection that a visual inspection of the crossing with regard to the embankment and bushes and with regard to the congested condition at said crossing would permit a more intelligent determination of the case by a jury, and defendant alleges that a jury sitting in the County of Charleston, South Carolina, could under appropriate and suitable direction by the court trying the case inspect said crossing as to the congested area alleged and as to the embankment and bushes which it is alleged obstructed the view and vision of the driver of the automobile in which the deceased was riding; and by a visual inspection could make a more intelligent determination of the issues raised in this case, thereby aiding the court and the jury in reaching a proper and true verdict as to the question of this defendant's liability. Whereas, defendant alleges that a court and jury sitting on the trial of the case in Fulton County, Georgia, some 400 to 500 miles distant from the scene of the accident, and not within the State where the accident occurred, could not make a visual inspection of the situation referred to herein. (5) Defendant further shows and alleges that all of the witnesses in said accident reside within the State of South Carolina and in the immediate vicinity of the scene of the accident; defendant in this connection alleging that there are approximately 15 to 20 witnesses who observed and saw the accident and who know conditions existing at said crossing at the time of the homicide of plaintiff's deceased; defendant showing further in this connection that with the exception of the train crew, that is to say, the engineer and fireman on the engine which struck the car in which the deceased was riding, none of the witnesses are employees of this defendant; defendant alleging further that, with the exception of its engineer and fireman, it has no power of direction or control over the witnesses to the accident and therefore can not direct their presence on the trial of this case in Fulton County, Georgia. (6) Defendant further shows that it would be burdensome and expensive to this defendant to require it to produce in Fulton County, Georgia, 15 or 20 witnesses residing in or near the City of Charleston, South Carolina. (7) Defendant shows further that the bringing of this action in Fulton County, Georgia, rather than in Charleston County, South Carolina, is vexatious, harassing, and oppressive to this defendant, and this defendant is at a disadvantage in the trial of the case in Fulton County, Georgia for the reason that it can not properly bring before the jury the factual situation with reference to said railroad crossing, and this defendant can not by subpoena produce witnesses in person, other than employees of this defendant, to testify on the trial of the case. And this defendant alleges that for it to be required to try the case involving the death of the plaintiff's deceased, by depositions, puts this defendant at a disadvantage on the trial of the case. Moreover, this defendant alleges that the situs of the accident, the residence of the witnesses, and all of the attendant facts surrounding the accident are more readily and easily obtainable in Charleston County, South Carolina, thereby affording the court and jury trying the case a more comprehensive knowledge of the facts surrounding the accident, thereby permitting the rendition of a true verdict in said case. (8) Defendant for the reasons assigned says that this court, while having jurisdiction over this defendant in a transitory cause of action, should not assume nor exercise jurisdiction in the case, but should relegate the parties to Charleston County in the State of South Carolina, where all of the facts surrounding the accident are easily obtainable, both as to the plaintiff and the defendant, and where justice may be more speedily administered."

After an affidavit was introduced to support the plea, the court rendered the following judgment thereon: "The special dilatory plea of forum non conveniens of the defendant, coming for hearing and after hearing the same, it is the judgment of the court that the court has no discretion in refusing to exercise jurisdiction in the above stated case. It is therefore ordered that the special dilatory plea of forum non conveniens be and the same is hereby overruled and denied." The railroad excepts to this judgment. This case introduces this court to a question which so far as we know, has not been presented to an appellate court of this State, to wit, whether a Georgia court has the discretion to decline jurisdiction of a transitory action in tort when it would be more convenient and less expensive for the defendant if the case was instituted and tried in the State and county where the alleged tort occurred. There have been cases involving the related question of whether our courts had jurisdiction of such actions, among which are: Reeves v. Southern Ry. Co.,121 Ga. 561 (49 S.E. 674, 70 L.R.A. 513, 2 Ann. Cas. 207);Southern Railway Co. v. Parker, 194 Ga. 94 (2 S.E.2d 94); Louisville Nashville R. Co. v. Meredith, 194 Ga. 106 (21 S.E.2d 101). Georgia has no statute on the exact question, and in nearly every jurisdiction the rule known as "forum non conveniens" is a court-made rule. There is a conflict in the authorities from the other States on the question, and in a limited class of cases the Supreme Court of the United States has held that a Federal court could decline jurisdiction under the Federal venue statute. Whatever may be the right and authority of our courts to decline jurisdiction in a transitory action where both parties are non-residents, in this case the plaintiff is a resident of Georgia. The court stated in the Parker case, supra, that it did not rule on the power of a court to refuse to exercise its jurisdiction where it is duly shown in a proper proceeding that it would be inequitable to do so. That statement is not a ruling that the court could refuse to exercise jurisdiction. Whatever may be the rule in the Federal courts or in other States, we think that our Constitution controls. Code § 2-104 provides: "No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by attorney, or both." This section refers to residents and applies to actions in a representative capacity as well as personal actions. For cases from other jurisdictions holding that courts have no right to deny a resident access to the courts of his residence, see 32 A.L.R. 29. New York cases are cited, in which it is held that New York courts may refuse to entertain jurisdiction where both parties are non-residents. These rulings are based on an interpretation of the non-resident venue statute (section 225, General Consolidated Laws of New York): "An action against a foreign corporation may be maintained by another foreign corporation or by a non-resident . . where a foreign corporation is doing business within this State." Such a holding was held constitutional in Douglas v. New York, New Haven c. R. Co., 279 U.S. 377 (49 Sup. Ct. 355, 73 L. ed. 747). It was ruled in the Parker case, supra, that the test of jurisdiction is not residence or non-residence of the plaintiff. While this is not the test of jurisdiction, it is a test of whether a court has a discretion in denying jurisdiction, assuming that our court could ever deny it. In Baltimore Ohio R. Co. v. Kepner, 314 U.S. 44 (62 Sup. Ct. 6, 86 L. ed. 28, 136 A.L.R. 1222), and Milesv. Illinois Central R. Co., 315 U.S. 698 (62 Sup. Ct. 827,86 L. ed. 1129, 146 A.L.R. 1104), the Supreme Court held that the doctrine of forum non conveniens could not defeat jurisdiction under the Federal Employers' Liability Act because of the special venue created by the act. It seems to us that our Constitution provides for a special local venue for residents of Georgia in cases where jurisdiction of a defendant can be obtained.

Under the above-cited constitutional provision, we think that the trial court properly ruled that it had no discretion to refuse to entertain jurisdiction of the case, no point on a fictitious acquisition of residence or appointment as administrator having been involved.

Judgment affirmed. Sutton, C. J., and Parker, J., concur.