APPEAL from the Circuit Court of Rock Island; the Hon. CHARLES
J. SMITH, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 15, 1971.
This is an appeal from a judgment of the circuit court of Rock Island County, Illinois.
The plaintiff in this litigation is a resident of the State of Michigan. The defendant railroad is a Delaware corporation doing business in Iowa and Illinois. The individual defendants, Throckmorton and Loftus, are officers of the railroad and are residents respectively of Cook and Will Counties, Illinois.
The plaintiff brought action to recover damages for the death of her deceased husband which resulted from a grade crossing collision between defendant's train and a truck driven by the decedent, Everett Adkins. The collision occurred at Booneville in the state of Iowa on October 6, 1966.
This suit was first filed on October 18, 1966, in the U.S. District Court for the Southern District of Iowa, Central Division, at Des Moines, Iowa. As originally filed the railroad was the sole defendant. On September 8, 1967, a pre-trial conference was held, at which time the defendant railroad's Motion in Limine was considered and granted. The cause was then set for trial on December 5, 1967, however, prior to this time the plaintiff moved to dismiss the action. On January 16, 1968, the case was re-filed in the circuit court of Rock Island County, Illinois, and again the sole defendant was the railroad. On March 15, 1968, the defendant railroad filed a motion to dismiss the action on the grounds of forum non conveniens. Thereafter on April 29, 1968, the plaintiff filed a motion to amend the complaint by adding individual defendants, namely, W.B. Throckmorton and R.V. Loftus, agents and employees of the railroad. On August 16, 1969, the plaintiff's motion to amend was allowed and the defendant railroad's motion to dismiss on the grounds of forum non conveniens was denied.
The errors assigned on this appeal are as follows: (a) the trial court erred in not sustaining the motion to dismiss on the grounds of forum non conveniens, (b) that the court erred in failing to dismiss the individual defendants from the case, (c) that plaintiff's decedent was guilty of contributory negligence, (d) that the trial court ruled incorrectly on certain objections to evidence, (e) that the trial court erred in instructing the jury, (f) that the verdict was excessive and should be set aside, and (g) that the trial court erred in denying certain motions. To adequately consider these claimed errors we will in turn state them with greater specificity and supply additional factual information where the same is relevant.
• 1, 2 Directing our attention to the alleged error of the trial court's ruling on the motion to dismiss the action on the grounds of forum non conveniens, we wish to note our awareness of the fact that our Supreme Court has approved the application of the doctrine in certain instances. (Whitney v. Madden, 400 Ill. 185, 79 N.E.2d 593; Cotton v. Louisville & Nashville Railroad Company, 14 Ill.2d 144, 152 N.E.2d 385.) The doctrine is an equitable one and has been described as "the discretionary power of a court to decline to exercise a possessed jurisdiction whenever it appears that the cause before it may be more appropriately tried elsewhere." See "The Doctrine of Forum Non Conveniens in Illinois," University of Illinois Law Forum, 1964, p. 646.
• 3 We are cognizant of the general rule that application of a doctrine lies primarily within the discretion of a trial court and that the motion should be allowed if a choice of forum is purely vexatious, but should be denied when there is a relevant connection between the litigation and the forum chosen (Cotton v. Louisville & Nashville Railroad Company, supra); also, we are aware of the excellent judicial discussion of the doctrine by Mr. Justice Jackson in the Case of Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055. It was in this case that Mr. Justice Jackson discussed certain factors which may persuade the trial court to dismiss an action, e.g., relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses, cost of obtaining attendance of willing witnesses, possibility of view of premises, court calendar congestion, the burdens of jury duty upon people of a community which has no relation to the litigation and the appropriateness of having a forum that is at home with the state law that must govern the case.
Mr. Justice Schaefer in his dissent in the Cotton case says that the court should consider "first, the relative capacity 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 Railroad Company, supra.
• 4 Before we examine the instant case in the light of guidelines set forth by Mr. Justices Jackson and Schaefer, we must note that both of these eminent jurists recognized that it is elementary that the doctrine of forum non conveniens presupposes at least two forums in which the defendant is amenable to process. Gulf Oil Corp. v. Gilbert, supra; Cotton v. Louisville & Nashville Railroad Company, supra.
• 5 After an examination of the record in the case now before us on appeal we can only conclude that prior to verdict there was never available a choice of forum, since Illinois was the only state in which all three defendants could be sued. At no time did the individual defendants Throckmorton and Loftus consent or in any way indicate that they would consent to be sued in any state other than Illinois, their state of citizenship and residence. It is significant that the defendants Throckmorton and Loftus never raised the issue of forum non conveniens at any time prior to verdict. In fact, there was never any claim, affidavit or motion prior to trial in which the individual defendants Throckmorton and Loftus contended that the complaint against them should be dismissed or that the pending action should be heard by a forum other than the circuit court of Rock Island County.
The exercise of discretion by a trial court cannot be abused when in fact the court was not vested with the power or right of discretion. In the case before us the trial court did not have presented to it a second forum which would be available to all defendants so we fail to see any error in the court's refusal to grant the motion for dismissal based upon the doctrine of forum non conveniens.
In determining that the doctrine of forum non conveniens was inapplicable in the case before us we must necessarily presuppose that the individual defendants Throckmorton and Loftus were proper parties to the litigation. We do presuppose since we believe that the law is settled as applied to the facts in the case before us that Throckmorton and Loftus were indeed proper parties to the suit.
The defendant argues that agents such as Throckmorton and Loftus can be liable to third parties for wrongful acts of misfeasance committed by them, but that as such agents they are not personally liable to a third party for mere nonfeasance, or in other words where they failed to perform some duty owed to an injured party. In support of this contention the defendants cite the case of Wendland v. Berg, 188 Ia. 202, 174 N.W. 410. We do not believe that the law is as clear cut in regard to the misfeasance and nonfeasance distinctions as the defendants claim it is. In fact in our present society liability or lack of liability to third parties based upon the misfeasance or nonfeasance test has become such a murky field that the old test itself has become obliterated ...