ORIGINAL PETITION for mandamus.
MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 23, 1958.
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, and 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. Dusher, 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 of 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 ...