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Giseburt v. Chicago

DECEMBER 11, 1963.

LEONARD D. GISEBURT, PLAINTIFF-APPELLEE,

v.

CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County; the Hon. JOSEPH J. BARR, Judge, presiding. Reversed and remanded with directions.

HOFFMAN, JUSTICE.

Rehearing denied February 5, 1964.

This is a personal injury action brought by plaintiff for injuries he received when struck by one of defendant's trains at a grade crossing.

The accident occurred within the city limits of St. Joseph, Missouri near the hour of 6:00 p.m. on the evening of October 16, 1959. The grade crossing consisted of 3 sets of tracks across which plaintiff was driving when he was struck by one of defendant's passenger trains traveling approximately 79 miles per hour. The crossing was only protected by a watchman. The facts were disputed as to his exact presence and as to how obstructed the crossing's view was. A city ordinance restricting a train's speed to 20 miles per hour in the city was introduced.

The suit was filed by the plaintiff, a resident of St. Joseph, Missouri, in the Circuit Court of Madison County, Illinois and resulted in a verdict in favor of plaintiff, from which defendant appeals.

Defendant's principal complaint here is that the trial court denied its motion to dismiss the cause, on the grounds of forum non conveniens, which motion was presented immediately after the complaint was filed. The motion, supported by affidavit, sets forth that the accident happened approximately 350 miles away from the Illinois forum selected by plaintiff and was filed in Illinois to vex the defendant. The defendant alleged that it intended to call 10 witnesses, all of whom resided in or near St. Joseph, Missouri. It sets forth the names of the witnesses and a summary of their testimony. It pointed out the inability of the Illinois court to subpoena the Missouri witnesses; set forth that trial by depositions would be ineffective; that unjustified expense would be incurred in bringing the witnesses to the place of trial; that there was no relevant connection between the cause of action and the forum chosen; that there would be law applicable with which the Illinois courts and the attorneys would be unfamiliar; that the courts in Missouri were current and the plaintiff could be afforded immediate trial; that the docket in Illinois was crowded; that an Illinois jury could not have the opportunity of viewing the scene of the accident, whereas a Missouri jury is afforded this privilege; and that the taxpayers of Illinois would be standing the expense of a trial for a case which occurred outside the state.

In objection, plaintiff filed an affidavit denying that the selection of the forum was vexatious and stating that the defendant was an Illinois corporation which ran railroads in Illinois, had legal counsel and claim representatives in Illinois and that its principal place of business was in Chicago.

Our Supreme Court has approved the application of the doctrine of forum non conveniens in this state. Whitney v. Madden, 400 Ill. 185, 79 N.E.2d 593; Cotton v. Louisville & Nashville R. Co., 14 Ill.2d 144, 152 N.E.2d 385. The doctrine, generally speaking, "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." (Cotton v. Louisville & Nashville R. Co., 14 Ill.2d 144, at page 150, 152 N.E.2d 385, at page 388.)

"The decision as to whether the facts of a particular case warrant dismissal of the cause under the doctrine of forum non conveniens lies primarily with the discretion of the trial court. The trial court's discretionary action in retaining or declining jurisdiction is subject to reversal on appeal only where there has been an abuse of discretion." (Cotton v. Louisville & Nashville R. Co., 14 Ill.2d 144, at page 159, 152 N.E.2d 385, at page 392.)

In the Cotton case, wherein the late Mr. Justice Bristow exhaustively reviewed state and federal authorities, the Supreme Court laid down the rule to be followed in determining whether or not a motion to dismiss based upon forum non conveniens should be allowed. This rule, following from Mr. Justice Frankfurter's dissent in Pope v. Atlantic Coast Line Railroad Co., 345 U.S. 379, is that the motion should be allowed if the choice of the forum is purely vexatious, but should be denied when there is a relevant connection between the litigation and the forum chosen.

Although the opinion in Cotton does not in detail set down the factors to be considered in determining whether or not there is such a relevant connection, Mr. Justice Jackson in Gulf Oil Co. v. Gilbert, 330 U.S. 501, quoted with approval in Cotton, does so in these words:

"Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. . . . Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not be imposed upon the people of a community which has no relation to the litigation . . . . There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having the court in some other forum untangle problems in conflict of laws, and in law foreign to itself."

In addition, we point out that Mr. Justice Schaefer, in his dissent in Cotton, says that the court should consider "first the relative capacities of the two forums to furnish the essentials of a fair trial, such as the power to compel the attendance of witnesses and the production of documents and to afford the jury an opportunity to view the scene if that is appropriate, and second, the relative convenience of the witnesses and the parties." (Cotton v. Louisville & Nashville R. Co., 14 Ill.2d 144, at page 176, 152 N.E.2d 385, at page 401.)

Before we examine into the instant case, we point out that in Cotton, a case arising under the Federal Employers' Liability Act and deriving special venue jurisdiction from Section 6 of said Act, the court found that forum non conveniens was inapplicable: Firstly, because defendant's affidavits were ...


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