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Cotton v. L. & N.r.r. Co.





APPEAL from the Appellate Court for the Fourth District; — heard in that court on appeal from the City Court of East St. Louis; the Hon. JOSEPH A. TROY, Judge, presiding. MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 18, 1958.

On August 20, 1955, plaintiff, a resident of Kentucky, was injured in the defendant's switchyards in Covington, Kentucky, while employed as a brakeman. On December 19, 1955, plaintiff instituted suit in the city court of East St. Louis, Illinois, against the defendant, claiming damages in the sum of $125,000 and alleging violation of the Federal Employers' Liability Act, 45 U.S.C.A. secs. 51-59, and the Federal Safety Appliance and Equipment Act, 45 U.S.C.A. secs. 1-16.

On January 16, 1956, defendant filed a motion to dismiss the action upon the doctrine of forum non conveniens. On March 8, 1956, the motion was denied, and on May 21 and 22, 1956, this cause was tried before a jury which returned a verdict in the sum of $75,000. Judgment thereon was affirmed by the Appellate Court, Fourth District, appearing in 15 Ill. App.2d 53. The trial court and the Appellate Court determined that defendant's motion for dismissal of plaintiff's suit upon the ground of forum non conveniens was without merit. To resolve the propriety of this determination this court granted leave to appeal, and we will focus our attention on this single issue.

Before considering this issue, however, we shall review briefly the facts and circumstances relating to plaintiff's accidental injuries, which are substantially uncontroverted in the record.

On August 20, 1955, while plaintiff was employed by defendant as a switchman and engaged in interstate commerce, it was necessary for plaintiff to release certain brakes. In doing so, he placed both hands on the brake wheel, jerked it four or five times in order to get more slack, whereupon the brake wheel suddenly spun, jerking him into a twisted position, and he felt a sharp, severe pain in the lower part of his back. Shortly thereafter, when he bent over to attempt to throw a switch, he could not straighten up.

These circumstances were reported to the foreman, Howard McManamas, and plaintiff was taken to the hospital, where Dr. Salsbery examined him and found a tenderness in the fifth lumbar and first sacral vertebra. The doctors testifying for both plaintiff and defendant agreed that plaintiff had a ruptured disc, which was a permanent disabling injury that produced pain, and would interfere with the performance of manual work. It was also agreed that an operation would be of questionable value.

Plaintiff further testified that he was 38 years old, that he had two years of high school education, had no other occupation or training, except farming and railroading; that he had been working for the L. & N. since September, 1940; that his wages for the year 1953 were $4,566.88, and for 1954 were $4,681; that he has pain continuously since the accident, and difficulty sleeping at night and must spend many hours each day in bed.

With reference to the controverted motion to dismiss, defendant asserted therein that the plaintiff has never been a resident of East St. Louis, Illinois; that defendant would present the testimony of eight occurrence witnesses, all of whom lived in and near Covington, Kentucky, which is 358 miles from East St. Louis, Illinois; that defendant would present the testimony of three doctors who live either in Covington, Kentucky, or nearby Cincinnati, Ohio; that defendant is amenable to process in the States of Kentucky and Ohio in both State and Federal courts, both of which are near the residence of plaintiff; that all witnesses are in close proximity to the place of the occurrence; that in order to present the medical aspects of this case it would be necessary for the doctors, hospital staff and witnesses to lose five days of their time, thus causing serious interference in the schedules of the doctors and hospital attaches; that the added expense would exceed $2,000; that submitting evidence in the form of deposition is ineffective and results in a denial of due process of law; that plaintiff's cause of action could be reinstituted in another forum at any time before August, 1958, and thus obviate the running of the statute of limitations; and that this congestion of court calendars and public expense warrant the dismissal of the suit.

In reply thereto, plaintiff admitted that the accident did not take place in the territorial limits of East St. Louis, and that defendant is a Kentucky corporation. However, plaintiff denied that defendant would present the testimony of three doctors and the hospital records; that defendant's witnesses would be required to lose five days of work; that the attendance of medical witnesses for defendant would seriously disrupt the doctors' work, requiring them to lose four days from their professional pursuits; and that defendant would incur the $2,000 expenses alleged as a result of the inconvenient forum selected by plaintiff.

Subsequent to the trial the defendant, in its post-trial motions, again alleged as error the failure of the court to dismiss the cause on the doctrine of forum non conveniens, and submitted an affidavit by chief deputy county treasurer Moeller, stating that there were no funds available for the payment of jurors; that warrants issued for jury service would not be redeemable at par until approximately December 10, 1956, but that the warrants could be cashed at a discount of 5 per cent.

Plaintiff thereupon filed a further reply, alleging that defendant is a railroad corporation licensed to do business in the State of Illinois, has a large switch yard in East St. Louis and many miles of track in the State of Illinois; that on the actual trial of the case defendant presented the testimony of four witnesses, none of whom were occurrence witnesses, three of these witnesses were employees of the defendant who inspected the cars involved sometime after the accident, and testified to having no knowledge of how the accident happened; that depositions for evidence of these three witnesses were taken by agreement between counsel at Latonia, Kentucky; that one of the four witnesses who testified was Dr. Otto H. Salsbery, orthopedist, who has offices in Covington, Kentucky; that his deposition had been taken for evidence but Dr. Salsbery was present in court and testified at the trial; that on the trial of the case plaintiff produced a conductor of the crew with which plaintiff was working, along with an evidence deposition of Dr. Nathan Flax; that the trial lasted two days, and that Dr. Salsbery, defendant's medical witness, was required to be there only one day.

Attached to this reply was an affidavit of Henry Behnen, clerk of the city court of East St. Louis, stating that there were no cases tried during the week when the case was originally set, even though a panel of 32 jurors was present; that in the case of Cotton v. Louisville and Nashville Railroad Co. motion for a continuance was filed by defendant on May 15, 1956, the day the case was set for trial on the trial docket; that the case was reset on May 21, 1956; that the jury panels were being recalled on May 21 for jury duty regardless of whether or not the case of Cotton v. Louisville and Nashville Railroad Co. was set for that day, and that the Cotton case in noway cost the county any additional money for a juror's fee.

In determining the propriety of defendant's motion to dismiss the cause on the ground of the doctrine of forum non conveniens, we shall note first the application of the doctrine in Illinois; then analyze the Federal and State court decisions involving the application of the doctrine in F.E.L.A. cases, including dissenting as well as majority opinions; and, finally, evaluate, in the light of such analysis, whether the doctrine should properly be invoked in the case at bar.

Generally speaking, forum non conveniens deals with the discretionary power of the court to decline to exercise a possessed jurisdiction whenever, because of varying factors, it appears that the controversy may be more suitably or conveniently tried elsewhere.

The applicability of this doctrine to F.E.L.A. cases has never been adjudicated by this court. In the recent case of People ex rel. Atchison, Topeka & Santa Fe Railway Co. v. Clark, 12 Ill.2d 515, a majority of this court determined only that mandamus was not the proper remedy to expunge an order denying a motion to dismiss based on forum non conveniens.

In support of its contention that the doctrine of forum non conveniens is established law in Illinois, defendant cites Whitney v. Madden, 400 Ill. 185. This cause involved an action by a nonresident for a libel occurring outside of the State, and service was obtained upon the nonresident while he was in Chicago between trains. The court, in approving the dismissal of the cause, emphasized that the record contained an unchallenged affidavit that "the interested parties were residents of other states, and that the defendant has no property and conducted no business in this state." It is apparent, in view of the difference in the operative facts and the basis of the decision, that the Madden case is of little value as a precedent herein.

In determining the applicability of the doctrine of forum non conveniens to F.E.L.A. cases, in the absence of precedent in this jurisdiction, it must be noted first that section 6 of the F.E.L.A., as amended in 1910, sets forth broad venue provisions. It provides: "Under this act an action may be brought in a circuit 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 act shall be concurrent with that of the courts of the several states, and no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States."

This section has been considered many times by our nation's highest court, and generally without unanimity. The reflections of both the majority and minority in the more important cases will be helpful in resolving the issues herein. In Baltimore & Ohio Railroad Co. v. Kepner, 314 U.S. 44, 86 L.ed. 28, decided in 1941, the railroad instituted suit in Ohio, where the accident occurred, to enjoin the injured employee from prosecuting an F.E.L.A. suit in the District Court of New York. The railroad contended that the employee was acting in a vexatious and inequitable manner in prosecuting the suit in a distant jurisdiction, when a more suitable and convenient forum lay at his doorstep, and that Congress, in fixing venue in F.E.L.A. cases did not mean that a State court was powerless to enjoin an inequitable exercise of that privilege.

In rejecting that contention, the United States Supreme Court stated at page 54: "A privilege of venue granted by the legislative body which created this right of action cannot be frustrated for reasons of convenience or expense. If it is deemed unjust, the remedy is legislative, a course followed in securing the amendment of April 5, 1910, for the benefit of employees. * * * Whatever burden there is here upon the railroad because of inconvenience or cost does not outweigh the plain grant of privilege for suit in New York."

Mr. Justice Frankfurter, disagreeing, stated that the majority decision unjustifiably limited the long settled powers of the State courts and thereby brought into disequilibrium the relationship of Federal and State courts; that the power of courts of equity to prevent a misuse of litigation, by enjoining resort to vexatious and oppressive foreign suits, cannot be denied; and that this familiar doctrine of forum non conveniens, under which a court having statutory jurisdiction may decline its facilities to a suit that in justice should be tried elsewhere, cannot be questioned.

The dissenting opinion further stated: "Congress was aware of the hardship by which under the original Employers' Liability Act of April 22, 1908, the plaintiff could bring his action only at the railroad's `residence.' [Citation] The amendment of 1910 greatly enlarged the range of a plaintiff's convenience in bringing suit. It is not disputed that the amendment was intended to open to a plaintiff courts from which he previously was barred. * * * The problem is whether the Act was intended to give a plaintiff an absolute and unqualified right to compel trial of his action in any of the specified places he chooses, thereby not only depriving state courts of their old power to protect against unjustly oppressive foreign suits, but also forbidding federal courts to decline jurisdiction `in the interest of justice' on familiar grounds of forum non conveniens. * * * It does not comport with equity and justice to allow a suit to be litigated in a forum where, on the balance, unnecessary hardship and inconvenience would be cast upon one party without any compensatingly fair convenience to the other party, but where, on the contrary, the suit might more conveniently be litigated in another forum available equally to both parties."

The following year the United States Supreme Court, in Miles v. Illinois Central Railroad Co. 315 U.S. 827, 86 L.ed. 1129, again reviewed "the important federal question as to the applicability of Section 6 of the F.E.L.A. to this situation." The railroad therein obtained an injunction against Mrs. Miles from prosecuting an F.E.L.A. action in a Missouri State court for the death of her husband, on the ground of inconvenience in the transportation of 20 employees, who were necessary witnesses, from Memphis, Tennessee, to St. Louis, Missouri. The majority opinion held that the injunction was improvidently issued. Mr. Justice Jackson wrote a most realistic concurring opinion, noted hereinafter. Mr. Justice Frankfurter again dissented, reitering that section 6 merely insures concurrent jurisdiction between Federal and State Courts, and concluding in this fashion. "The power of equity to restrain the prosecution of unconscionable suits ...

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