People ex rel. Atchison, Topeka & Santa Fe Railway Co. v. Clark , 12 Ill. 2d 515 ( 1957 )

Mr. Justice KlingbiEl

delivered the opinion of the court:

This is an original petition for a writ of mandamus sought by the Atchison, Topeka and Santa Fe Railway Company, petitioner, to compel respondent, the Honorable Ezra J. Clark, to dismiss on the ground of forum non conveniens the cause pending in the circuit court of Cook County entitled Joe Moore, Administrator of the Estate of Vernon F. Adair, Deceased, Plaintiff, v. The Atchison, Topeka and Santa Fe Railway Company, a corporation, Defendant, No. 56 C 14719.

The verified petition for mandamus and answer thereto set forth the following undisputed facts. On July 5, 1955, Vernon F. Adair, a resident of Clovis, New Mexico, was killed in a head-on collision near Cardenas, New Mexico, between petitioner’s westbound train, on which deceased was employed as a brakeman, and petitioner’s eastbound train. Deceased left surviving at the time of his death a widow and seven minor children, all of whom reside in Clovis, New Mexico. On July 18, 1955, respondent Joe Moore, an attorney residing at Sapulpa, Oklahoma, was duly appointed administrator of the estate of Vernon F. Adair by the county court of Creek County, Oklahoma. Petitioner is a railroad corporation engaged in the business of owning and operating a railroad in various States of the United States, including Illinois, New Mexico, arid Oklahoma.

On July 18, 1955, respondent Moore, as administrator, brought an action against petitioner railroad in the district court of Creek County, Oklahoma, seeking recovery under the Federal Employers’ Liability Act for the death of Adair. The railroad moved to dismiss the complaint on the ground that the district court of Creek County, Oklahoma, was an inconvenient and inappropriate forum, alleging that trial there would require it to transport some 15 employee witnesses from New Mexico to Oklahoma and that its trial expenses would be more than $5,000 in excess of the amount required were the trial held in New Mexico. The railroad’s motion was denied by the district court but subsequently, in an original mandamus proceeding in the Oklahoma Supreme Court, that court issued a writ of mandamus commanding the district court to dismiss the case under the doctrine of forum non conveniens.

While the above Oklahoma case was still pending, the administrator also brought suit against petitioner in the circuit court of Cook County. This action was voluntarily dismissed by the plaintiff because the Oklahoma action between the same parties and for the same cause of action was still pending. After the Oklahoma case was finally determined against the administrator, the suit in Cook County was refiled. On November 29, 1956, the railroad again filed a motion to dismiss on the ground of forum non conveniens alleging, as it had in the Oklahoma proceeding, that the circuit court of Cook County is an inconvenient and inappropriate forum, that a trial in Illinois would require it to transport 15 employee witnesses from New Mexico to Illinois, that its expenses would thereby be increased by more -than $5,000, that the trial of such “imported” cases materially burdens the circuit court of Cook County and the residents and taxpayers of said county, and that such cases are responsible for the calendar congestion there. Respondent administrator submitted affidavits in opposition to this motion alleging that petititoner railroad maintains its principal offices in Chicago, that its principal executive officers, general solicitor and legal staff are located in Chicago, and that its board of directors meets in Chicago. Respondent’s counsel, in a supplementary affidavit, also alleged that petitioner’s motion failed to demonstrate that 15 New Mexico witnesses will be needed to testify at the trial, that any New Mexico witnesses needed can conveniently be brought to Chicago by free passes on petitioner’s railroad, that the effect of imported Federal Employers’ Liability Act cases on the dockets of the circuit court of Cook County is insignificant, that if this case were tried in New Mexico certain injunction and criminal proceedings pending against respondent administrator’s counsel there would serious prejudice the interests of said respondent and the widow and children represented by him and would delay and confuse the civil action between the parties, and that said respondent would not receive a fair and impartial trial in New Mexico because of the predominant influence of the Santa Fe in that State.

Respondent judge entertained petitioner’s motion to dismiss on the ground of forum non conveniens, heard arguments and received affidavits and briefs from both sides, and, after some months of deliberation, overruled the motion on the ground that plaintiff’s right to choose his forum under section 6 of the Federal Employers’ Liability Act is a substantial one which “shouldn’t be taken away by the courts — at least unless there is more of a showing than is contained in either of these cases.”

Leave having been granted by this court, defendant railroad has filed its original petition for a writ of mandamus to compel the trial judge to dismiss the cause. Petitioner contends that the doctrine of forum non conveniens required a dismissal of this case, that the denial of its motion to dismiss by the trial judge constituted a flat refusal to exercise his discretion or, in the alternative, that such denial constituted a gross abuse of discretion. While apparently admitting that the order complained of eventually may be reviewed on appeal from final judgment in the case, petitioner contends that if it proceeds to trial in this inconvenient forum it will have suffered the injuries alleged without adequate remedy and if a verdict for plaintiff results, it will be foreclosed from obtaining a fair review of said order because the reviewing court will take into consideration the possibility that plaintiff’s cause of action may be endangered by the Statute of Limitations if the case were ordered dismissed. Therefore, it contends, the extraordinary writ of mandamus is appropriate.

Respondent judge and respondent administrator contend, on the contrary, that the judge did exercise his discretion in denying petitioner’s motion to dismiss and therefore the action is not reviewable by mandamus, that the judge exercised his discretion correctly and without abuse, and that the doctrine of forum non conveniens should not be applied to actions under the Federal Employers’ Liability Act in Illinois.

The decisive issue here, one which has not previously been considered by this court, is whether mandamus is an appropriate remedy to expunge an order of a trial judge denying a motion to dismiss on the ground of forum non conveniens and to compel him to grant the motion and dismiss the cause. We are of the opinion that in the circumstances of this case the writ is inappropriate.

Article VI, section 2, of the Illinois constitution confers original jurisdiction on this court in cases “in mandamus The traditional use of the writ of mandamus, both at common law and in the Illinois courts, has been to compel the performance of a purely ministerial duty which the relator is entitled of right to have performed and which the party owing the duty has failed to perform. (People ex rel. Jacobi v. Nelson, 346 Ill. 247.) Where the performance of an official duty or act involves the exercise of judgment or discretion, the officer’s action is not subject to review or control by mandamus. (People ex rel. Iasello v. McKinlay, 409 Ill. 120, 124.) Although mandamus will lie to compel the performance of a judicial duty where such duty is ministerial and the right is clear, this court has repeatedly held that the writ will not lie to direct or modify the exercise of judicial discretion by a judge. (People ex rel. Dolan v. Dusker, 411 Ill. 535, 538; People ex rel. Barrett v. Shurtleff, 353 Ill. 248, 259-60; People ex rel. Elliott v. Juergens, 407 Ill. 391.) As was said in People ex rel. Barrett v. Shurtleff, 353 Ill. 248, 259, “It is not the office of the writ of mandamus to review the orders, judgments, or decrees of courts for error in their rendition or to' correct, direct, or control the action óf a judge in any matter which he has jurisdiction to decide. For mere error, however gross or manifest, the remedy is an appeal or writ of error, and the writ of mandamus will not lie for its correction if the court has jurisdiction of the subject matter and the parties.”

The doctrine of forum non conveniens has been described as an equitable doctrine whereby “the trial court may, in its discretion, decline the jurisdiction of the case,” under certain circumstances, “even though it may have proper jurisdiction over all parties and the subject matter involved.” (Whitney v. Madden, 400 Ill. 185, 189.) Therefore, a motion to dismiss based on forum non conveniens raises an issue which necessitates an exercise of discretion by the trial judge in ruling thereon. Such discretionary action of a trial judge cannot be reviewed or controlled by mandamus unless the judge refused to exercise his discretion at all, under the principles relating to mandamus set forth above.

The record in the instant case clearly demonstrates that respondent judge did exercise his discretion in ruling on petitioner’s motion. He did not refuse to entertain the motion, but rather he entertained it, heard arguments and received affidavits and briefs thereon, and, after lengthy deliberation, entered an order denying said motion. This ruling was a judicial act and constituted an exercise of the court’s discretion. Where an officer, in the exercise of a discretionary power, has considered and determined what his course of action is to be, he has exercised his discretion, and his action is not subject to review or control by mandamus. People ex rel. Iasello v. McKinlay, 409 Ill. 120, 124; MacGregor v. Miller, 324 Ill. 113.

Petitioner contends, however, that in denying its motion and refusing to dismiss respondent judge decided that the doctrine of forum non conveniens could never apply to a Federal Employers’ Liability Act case in Illinois and based his ruling solely on that ground. This, it argues, constituted a flat refusal to exercise discretion based on the erroneous belief that he was prohibited from allowing petitioner’s motion in any event. As we read it, the very words of respondent’s ruling on the motion amply refute this argument. He did not say that the forum non conveniens doctrine could never apply in F.E.L.A. cases, but only that plaintiff’s right to choose his forum in such a case should not be taken away under the guise of forum non conveniens “at least unless there is more of a showing than is contained in either of these cases.” Thus he explicitly recognized the possibility of dismissing an F.E.L.A. case on the ground of forum non conveniens, and held only that in this case the defendant had not made a sufficient showing to induce him, in his discretion, to grant the motion. Moreover, under Illinois law, even if the judge had held that the forum non conveniens doctrine could never apply to a State action under the F.E.L.A., mandamus would not be appropriate to review the correctness of such ruling. Even if erroneous, which we do not here decide, it would be a mere error of law, subject to correction on appeal, but not reviewable by mandamus. People ex rel. Elliott v. Juergens, 407 Ill. 391.

In regard to a similar contention made in Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 382, 98 L. ed. 106, the United States Supreme Court said: “The contention is that in acting on the motion and ordering transfer he exceeded his legal powers and this error ousted him of jurisdiction. But jurisdiction need not run the gauntlet of reversible errors. The ruling on a question of law decisive of the issue presented by Cravey’s motion and the replication of the petitioner was made in the course of the exercise of the court’s jurisdiction to decide issues properly brought before it. [Citations.] Its decision against petitioner, even if erroneous — which we do not pass upon —involved no abuse of judicial power, [citation] and is reviewable upon appeal after final judgment. If we applied the reasoning advanced by the petitioner, then every interlocutory order which is wrong might be reviewed under the All Writs Act. The office of a writ of mandamus would be enlarged to actually control the decision of the trial court rather than used in its traditional function of confining a court to its prescribed jurisdiction.”

Petitioner’s argument that respondent judge failed to exercise his discretion at all is also refuted by petitioner’s own prayer for relief in its petition for mandamus. It asks not that this court merely order respondent to act, but further, that it order respondent to act in a particular way, i.e., to grant the motion and dismiss the cause. This, in itself, indicates that it is the action of the judge in the exercise of his discretion to which petitioner objects, not any refusal to act on his part.

We come then to petitioner’s alternative contention that even if it be held that respondent judge did exercise his discretion in denying the motion, such denial was so clearly erroneous that it constituted a gross abuse of discretion subject to review by mandamus.

In our opinion, whether the ruling of the trial judge was erroneous, and, if so, the degree of the error, are not proper considerations in the present mandamus proceeding. To hold otherwise would mean that every interlocutory order could be brought before this court for review on mandamus, and we would be called upon to decide not only whether each such order be erroneous, but also whether sufficiently erroneous to warrant the issuance of mandamus. This would be directly contrary to the rule that “For mere error, however gross or manifest, the remedy is an appeal or writ of error, and the writ of mandamus will not lie for its correction if the court has jurisdiction of the subject matter and the parties.” People ex rel. Barrett v. Shurtleff, 353 Ill. 248, 259.

The closest analogy to be found in the Illinois cases is the question of whether mandamus will lie to review an order denying a motion for a change of venue. It is established in this State that mandamus will not lie to review such an order. In People ex rel. Clark v. McRoberts, 100 Ill. 458, 461, in denying an original application for leave to file a petition for mandamus in this court, the court said: “After an examination of the authorities, and the briefs of the parties, we are of opinion that the writ will not lie. * * * If the writ was allowed in this case compelling the court to enter a mere interlocutory order, we see no reason why it might not be asked for and granted in every case while the suit was progressing, compelling the court to enter particular orders. In other words, it would be to bring up the case in fragments from the court below, and have every ruling of that court passed upon during the progress of the case, and in that way bring cases before the court where there was no final judgment or determination in the court below.” The above reasoning is equally applicable to an order denying a forum non conveniens motion. Any alleged hardship to the petitioner in the instant case would appear to be substantially similar to that of the petitioner whose motion for a change of venue had been denied. We find no compelling reason to adopt a different rule in this case.

There being a dearth of State authority on the exact question presented here, analogy has been drawn to the Federal cases involving the question of whether mandamus will lie to review the ruling of a trial court on a motion to transfer “for the convenience of parties and witnesses, in the interest of justice” under section 1404(a) of the United States Judicial Code. (28 U.S.C., sec. 1404(a).) Although those cases may be helpful on the subject of mandamus, it is important to emphasize, before considering them, the distinction between a transfer under said section and a dismissal under the doctrine of forum non conveniens. This distinction was pointed up by the United States Supreme Court in Norwood v. Kirkpatrick, 349 U.S. 29, 99 L. ed. 789, 792, where it was said: “The forum non conveniens doctrine is quite different from Section 1404(a). That doctrine involves the dismissal of a case because the forum chosen by the plaintiff is so completely inappropriate and inconvenient that it is better to stop the litigation in the place where brought and let it start all over again somewhere else. It is quite naturally subject to careful limitation for it not only denies the plaintiff the generally accorded privilege of bringing an action where he chooses, but makes it possible for him to lose out completely, through the running of the statute of limitations in the forum finally deemed appropriate. Section 1404(a) avoids this latter danger. Its words should be considered for what they say, not with preconceived limitations derived from the forum non conveniens doctrine.” The Federal cases are valuable here, therefore, only insofar as their reasoning tends to shed some light on the question of our power to issue mandamus.

The United States Supreme Court has never found it necessary to rule on the question of whether mandamus will properly lie to review a transfer order under section 1404(a). (Norwood v. Kirkpatrick, 349 U.S. 29, 99 L. ed. 789.) The decisions of the Courts of Appeals for the various circuits are in hopeless conflict on this question, the first, third, fourth, and eighth circuits holding mandamus will not lie to review an order under 1404(a), (In re Josephson, 1 Cir., 218 F.2d 174; All States Freight, Inc. v. Modarelli, 3 Cir., 196 F.2d 1010; Clayton v. Warlick, 4 Cir., 232 F.2d 699; Great Northern Railway Co. v. Hyde, 8 Cir., 238 F.2d 852), and the fifth, sixth and seventh circuits holding that mandamus will lie to review such orders. Atlantic Coast Line Railroad Co. v. Davis, 5 Cir., 185 F.2d 766; Nicol v. Koscinski, 6 Cir., 188 F.2d 537; Chicago, Rock Island & Pacific Railroad Co. v. Igoe, 220 F.2d 299.

The decision of the Court of Appeals for the Seventh Circuit in Chicago, Rock Island & Pacific Railroad Co. v. Igoe, 220 F.2d 299, upon which petitioner chiefly relies, is the most extreme example of the view that mandamus will lie to review an order denying transfer. On the first petition for mandamus in that case, the Court of Appeals held that the trial judge had failed to exercise his discretion in ruling on defendant’s motion to transfer and remanded the cause, stating: “Ultimate decision on that motion is within the province of the District Court, and we cannot, as petitioner would have us do, usurp its function and decide the question in this court.” (212 F.2d 378.) When on remand the District Court again denied the motion to transfer, however, the Court of Appeals issued the writ of mandamus to compel transfer on the grounds that “The balance of convenience of the parties is so overwhelmingly in favor of the defendant [railroad] that we hold the denial by respondent [judge] of the motion to transfer this case * * * was so clearly erroneous that it amounted to an abuse of discretion.” (220 F.2d 299.) The dissent noted: “I think we now usurp, where once we refrained. Either the remand order gave the District Judge a Hobson’s choice, or it left him with discretion. * * * If we are substituting our discretion for that of respondent we ought to say so and be done with it. We have no business, as I view it, balancing conveniences of the parties and speculating upon their motivations.”

The reasoning of those courts which refuse to issue mandamus to review transfer orders under 1404(a) is well expressed by the Court of Appeals for the Third Circuit in All States Freight, Inc. v. Modarelli, 196 F.2d 1010, 1011 :

“It is settled in this Circuit and elsewhere that an order either making a transfer or refusing a transfer is not appealable. Now the effort is being made both in this court and elsewhere to substitute for appeal a review by mandamus whenever the losing party on a motion to transfer wants an advance review of the ruling on this point.

“We think that this practice will defeat the object of the statute. Instead of making the business of the courts easier, quicker and less expensive, we now have the merits of the litigation postponed while appellate courts review the question where a case may be tried.

“Every litigant against whom the transfer issue is decided naturally thinks the judge was wrong. It is likely that in some cases an appellate court would think so, too. But the risk of a party being injured either by the granting or refusal of a transfer order is, we think, much less than the certainty of harm through delay and additional expense if these orders are to be subjected to interlocutory review by mandamus * * *.

“* * * we cannot escape the conclusion that it will be highly unfortunate if the result of an attempted procedural improvement is to subject parties to two lawsuits : first, prolonged litigation to determine the place where a case is to be tried; and, second, the merits of the alleged cause of action itself.”

Likewise, in In re Josephson, 218 F.2d 174, 182-3, the court said that as to the contention “that the order of transfer was an 'abuse of discretion’ under the circumstances, we are clear that as a matter of general policy we ought not to go into that in the present proceeding.” Then, after quoting at length from the Modarelli case, the court concluded: “Accordingly, we serve notice that in the future, except in really extraordinary situations * * * we shall stop such mandamus proceedings at the very threshold, by denying leave to file the petition for a writ of mandamus.”

Also, in Great Northern Railway Co. v. Hyde, 238 F.2d 852, 857, that court held that mandamus would not lie to review a transfer order even though it resulted in hardship and even though the Appellate Court was of the opinion that the order was erroneous, saying: “We do not regard controversies between litigants, and between their counsel, as to where a case can most conveniently, fairly, efficiently and economically be tried as ‘really extraordinary.’ * * * We think that, in the interest of an expeditious and orderly administration of justice, controversies about venue should be finally settled and determined at the District Court level.”

From our review of the Federal authorities, we find the rationale of the cases refusing mandamus to review transfer orders more persuasive and more consonant with the Illinois law relating to mandamus generally.

For the foregoing reasons, we conclude that the trial judge did exercise his discretion in ruling on petitioner’s motion to dismiss and that the correctness of said ruling may not properly be reviewed in this mandamus proceeding. Therefore the writ of mandamus must be denied.

Writ denied.