Opinion
36065.
DECIDED MARCH 14, 1956.
Action for damages. Before Judge Moore. Fulton Superior Court. November 15, 1955.
Alston, Sibley, Miller, Spann Shackelford, Daniel B. Hodgson, Wm. B. Spann, Jr., for plaintiff in error.
Hewlett, Dennis, Bowden Barton, Sam D. Hewlett, Jr., contra.
Whether or not the doctrine of forum non conveniens is applicable in the State of Georgia, such doctrine must be applied here as the law of the case, for the reason that the trial court overruled a motion by the plaintiff to dismiss the defendant's motion to dismiss the plaintiff's case under the doctrine of forum non conveniens, on which judgment there is no assignment of error, thus establishing the applicability of the doctrine as the law of the case. It appears, however, that the trial court properly exercised his discretion after hearing evidence both in support of and against the motion to dismiss the plaintiff's case under the doctrine of forum non conveniens, and in a proper exercise thereof denied the motion.
DECIDED MARCH 14, 1956.
R. A. Pope, a resident of Tampa, Florida, filed in Fulton Superior Court an action under the Federal Employer's Liability Act against Atlantic Coast Line Railroad Company, a nonresident corporation with an agent upon whom service was perfected in Atlanta, Georgia. The cause of action arose in Pembroke, Florida. The defendant moved to dismiss without prejudice under the doctrine of forum non conveniens. A motion by the plaintiff to dismiss this motion was denied and that judgment is not excepted to here. Thereafter, the defendant's motion came on to be heard by the court on submission of affidavits of the defendant to the effect that all its witnesses, including railroad men and medical experts, resided in Florida, in Bartow, Lakeland, or Plant City, all between 500 and 600 miles from Atlanta; that a trial in this forum will involve great expense and inconvenience to the defendant as it must transport and keep some 17 railroad witnesses in Atlanta, it cannot force its medical witnesses to be present in this forum, and, if they came voluntarily this would involve an expense to the defendant of over $1,000. It was stipulated that Florida courts entertain transitory causes of action and have entertained actions by nonresident Georgians under the Federal Employers' Liability Act and that the action might be tried in Miami, Florida, where the defendant has an agent for service; also, that Florida's subpoena process extends throughout the State. The plaintiff in his sworn affidavit testified that train schedules from Tampa to Miami were as long or longer than those from Tampa to Atlanta; that in seeking the best qualified attorneys to handle his case he was recommended to two Atlanta law firms and that he chose one of them for these reasons. The statement that there was no Florida attorney equally well qualified was disputed in a counter-affidavit by one of the railroad counsel.
The bill of exceptions recites the following: "Thereupon, after argument by counsel, the court asked counsel if they knew of any case where the discretion under the doctrine of forum non conveniens had been exercised by a trial court. Defendant's counsel cited to the court a Minnesota and a California case where the discretion had been exercised or directed to be exercised, but neither counsel knew of such an instance in Georgia. The court stated that he knew of no such instance in Georgia and that he thought it would be a bad thing for him to establish such a precedent and to impugn improper motivation to plaintiff, since it was his belief that a litigant was entitled to select his counsel and his forum freely. The court further stated that he did not feel he should assume that the plaintiff was bringing a suit to harass, embarrass, or inconvenience the defendant or to seek out a soft spot (as contended by the defendant) for litigation unless evidence was introduced to that effect. The court stated that he felt the defendant could bring all its material witnesses to Atlanta if it made an effort to do so; that he did not believe Fulton County was a `soft spot' for plaintiff litigants, and that he believed this plaintiff was like a lot of people and railroad men who had heard of some plaintiff's law firm which was successful or skilled in handling personal injury claims and sought out that firm to represent them for that reason rather than for the purpose of seeking a favorable forum or `soft spot' for litigation." The court thereupon overruled the motion to dismiss without prejudice, and this judgment is assigned as error.
The defendant makes the following contentions: (a) That the doctrine of forum non conveniens is the expression of an inherent power of courts and exists in Georgia; (b) That in any event it is established as the law of this case that such doctrine exists; (c) That accordingly, under the law and evidence it became the duty of the trial judge to exercise his discretion in determining whether or not the forum was so inconvenient for the defendant as to justify a refusal to entertain the suit, but the statements of the court show that he did not exercise his discretion in the matter, and (d) That if he did exercise his discretion, the judgment is a gross abuse of discretion. Since it appears that the court in overruling the plaintiff's motion to strike this defense adjudicated that the doctrine of forum non conveniens does not exist in Georgia, and that there is no cross-bill of exceptions assigning error thereon, it becomes unnecessary to decide contention (a), and contention (b) is good, insofar as this litigation is concerned. The venue provisions of the Federal Employers' Liability Act as stated in 45 U.S.C.A. § 56 are as follows: "Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States."
In Missouri ex rel. Southern Railway Co. v. Mayfield, 340 U.S. 1 ( 71 Sup. Ct. 1, 95 L. ed. 3), it was held that whether or not the doctrine of forum non conveniens applied in a State court in a Federal Employers' Liability Act case so as to authorize the court in its discretion to refuse to entertain the action would be a decision based on State rather than Federal law. On the other hand, Pope v. Atlantic Coast Line R. Co., 345 U.S. 379 ( 73 Sup. Ct. 749, 97 L. ed. 1094) reversed the decision in Atlantic Coast Line R. Co. v. Pope, 209 Ga. 187 ( 76 S.E.2d 399). In that case Pope (not the plaintiff here), a resident of Ben Hill County, Georgia, in which county his injury occurred, brought an action under the Federal Employers' Liability Act against the employer railroad company in the circuit court of Jefferson County, Alabama, a State which does not recognize the doctrine of forum non conveniens. The defendant then brought an action in Ben Hill County, Georgia, seeking to enjoin the plaintiff from prosecuting his action in the Alabama court on the ground that that forum would subject it to unreasonable inconvenience, expense and harassment. The trial court sustained demurrers to this petition, and the Supreme Court of Georgia reversed, holding that Georgia had jurisdiction to determine the question presented. This judgment was reversed by the Supreme Court of the United States on the ground that 45 U.S.C.A. § 56, supra "establishes petitioner's right to sue in Alabama."
The reversal by the Supreme Court of the United States of the Pope case, supra, is not construed here to constitute any restriction on the part of a sovereign State to determine its own policy. This court recognizes, as the Supreme Court of the United States must, that while Congress may pass an act establishing rights of action and conferring on State courts jurisdiction to hear and determine resultant litigation, Congress has no power to require State courts to accept jurisdiction of such causes of action. However, in the Pope case, supra, the action was not brought by Pope under the Federal Employer's Liability Act, a cause of action established by Congress, but was brought against Pope to restrain him from availing himself of rights secured to him under the act. Whether the Supreme Court of Georgia meant by this that in a proper case they would or would not recognize the doctrine of forum non conveniens in this State is not before us. In this case the doctrine must be recognized as the law of the case. Accordingly, we direct ourselves only to the question of whether the order of the trial court is sustainable under contentions (c) and (d) supra.
The statements of Judge Moore that "he did not feel he should assume the plaintiff was bringing a suit to harass, embarrass, or inconvenience the defendant or to seek out a soft spot for litigation unless evidence was introduced to that effect" is an indication that the court decided the issue against the defendant on the proposition that there was a lack of evidence to support one of its main contentions, and accordingly sustains the presumption that the court did his duty by exercising his legal discretion in the matter. The court then stated that he found the reason for the plaintiff bringing the action in Georgia was a valid one, based on the availability of counsel skilled in the trial of this class of cases, which reason also was supported by the sworn evidence of the plaintiff. To find that there was some inconvenience to the defendant in defending the suit in Atlanta, Georgia, rather than Miami, Florida (both places being several hundred miles away from the scene of the injuries), would not demand an exercise of discretion in refusing jurisdiction of the case. Whether or not such a finding plus a finding that the forum was chosen merely to harass and vex, would either authorize or demand a finding that the court's discretion should be exercised to forbid the action, is not before us. The court found against this latter contention, found that the plaintiff had a valid reason for bringing his action in Fulton County, and retained jurisdiction thereof. Such decision was perfectly proper. Furthermore, the courts are committed to the principle of stare decisis and accordingly find nothing improper in the trial court inquiring as to precedent for the procedure urged upon him by the defendant.
The trial court did not err in overruling the motion to dismiss without prejudice.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.