State Ex Rel. Great Northern Railway Co. v. District Court of the Second Judicial District , 139 Mont. 453 ( 1961 )

MB. CHIEF JUSTICE HABBISON

delivered the Opinion of the Court.

This is an original proceeding wherein relator filed in this court a petition for an appropriate writ, contending that the respondent court had abused its discretion in denying a motion to dismiss a civil action, in which relator was named as a defendant upon the ground of forum, non conveniens.

It appears that the plaintiff alleged in that action that he was injured at Spokane, Washington, while employed by the defendant Bailroad Company in working as a switchman in Interstate Commerce. The action was commenced under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., in the district court of the second judicial district, in and for the County of Silver Bow, Montana.

The defendant Bailroad Company filed a motion to dismiss, as before stated, from which it appears that the plaintiff is a resident and citizen of the State of Washington, and that the filing of the action in Silver Bow County, Montana, was inconvenient to the parties and constituted undue harassment of the parties and was unreasonable. In support of such contentions the Bailroad Company asserted it was a corporation organized under the laws of the State of Minnesota, and engaged in business in the State of Washington; that an actual view of the premises by the jury would be necessary in establishing their defense; that it would be necessary to bring at least nine witnesses to Butte from Spokane, Washington; that the plaintiff was treated or examined by six physicians in Spokane and it would be unsatisfactory to present such testimony by deposition; and that it would cost defendant not less than $5,000 in expenses, wages, and witnesses’ fees if the trial were held in Butte.

The relator further asserts that plaintiff would have until January 17, 1963, in which to file his cause of action in either the Washington State Court or the Federal Court in Washington, either of which would have jurisdiction.

The relator further contended that the failure of the district court to grant motions to dismiss in cases of this type has resulted in an increasing number of cases being filed in Silver Bow County, constituting a hardship upon both the Railroad Company and the taxpayers of that county, who are being-obliged to pay the cost of furnishing a forum for the trial of cases originating outside the state and involving nonresident plaintiffs.

The plaintiff in resisting the motion to dismiss contended that since the injury took place in the nighttime a jury view of the premises would be improper and that in any event photographs could be taken to show the area; that the defendant could bring its employees to Butte, Montana, without great inconvenience, and further that there was only one witness to the actual accident; and that the plaintiff was examined by two doctors in Butte, and that it would be unsatisfactory to take their testimony by deposition.

Since the order denying the motion to dismiss is not an appealable order, and relator contended that unless otherwise ordered by this court the respondents would proceed to trial to relator’s detriment, this court accepted jurisdiction and issued an alternative writ.

Upon the return date respondents filed a motion to quash the alternative writ and, without waiver, also filed their answer.

By their answer respondents allege that the plaintiff, under the Federal Employers’ Liability Act, had the choice of placing venue where defendant resides, where the cause of action arose, or the place where defendant was doing business at the time the action was commenced. 45 U.S.C.A. § 56.

That section 93-2904, R.C.M.1947, expressly provides that if none of the defendants reside in this state an action may be tried in any county which the plaintiff may designate in his complaint; that by virtue of the provisions of the Federal Employers’ Liability Act and the statutes of Montana the respondent considered the showing made by relator insufficient to warrant a dismissal of the action; that respondent further believes that it has been the public policy of this state to keep its courts open to residents and nonresidents alike, unless the citizens of the state wish, through their Legislature, to change such public policy; and, finally, that the doctrine of forum non conveniens does not apply in the State of Washington, and its courts are open to citizens of Montana in like situations as the plaintiff here, and prayed that the writ be denied.

We have been favored with exhaustive briefs of counsel and previously the matter of the doctrine of forum non conveniens was before this court.

In State ex rel. Great Northern Ry. Co. v. District Court, 131 Mont. 607, 306 P.2d 1109, the railroad brought an original proceeding in this court seeking a writ, which application was denied. Thereafter the doctrine was again before this court on appeal in Bracy v. Great Northern Ry. Co., 136 Mont. 65, 343 P.2d 848. In that case the appellant railroad company contended the district court erred in denying its motion to dismiss upon the doctrine of forum non conveniens. We held that whether the doctrine should be applied in a given case was a question resting in the discretion of the trial court, and that there was no basis for the contention that the trial court abused its discretion in denying the motion.

Without burdening this opinion with an extensive discussion of the cases decided in the Federal and State Courts regarding the doctrine of forum non conveniens, it appears to be quite clear that a state may accept or reject the doctrine without violating any provisions of the Federal Law, and that nothing in the Federal Employers’ Liability Act compels a state court to exercise the jurisdiction conferred under its provisions.

The purpose of the rule is to require litigants to avail themselves of the trial forum of their residence and not burden the taxpayers and courts of foreign jurisdictions with such causes.

Having these considerations in mind, if it appeared that a great number of such actions were being filed in Silver Bow County we would be averse to permitting the practice to continue. However, from the record before us it appears that eighteen of such actions have been filed there in the past eleven years, which would not indicate a trend, as of this time, of importing this type of litigation.

Since our sister state has not seen fit to adopt the rule, and by reason of the other matters hereinbefore set forth, we do not feel justified in this instance to establish the rule. We do state, however, that if a substantial increase in this type of litigation is called to our attention in the future we will reexamine the situation in light of what we have herein stated.

The alternative writ is dissolved and the proceeding dismissed.

MR. JUSTICE JOHN C. HARRISON concurs.