dissenting:
I dissent because I think that as a matter of proper judicial administration the court should face up to the issue that the case presents, and that as a matter of law it is bound to do so. There are many current myths and misconceptions about the factors that are to be taken into account in applying the doctrine of forum non conveniens, particularly with respect to F.E.L.A. cases. Some of them appear in this record. In my opinion this court is properly called upon to dispel them.
There are many cases in which an original mandamus action has been entertained when judicial action taken by the trial court was based upon an erroneous view of the law. (See e.g., People ex rel. Woll v. Graber, 394 Ill. 362 ; People ex rel. Benefit Association v. Miner, 387 Ill. 390; People ex rel. Water v. Wells, 255 Ill. 450.) In other recent instances we have not hesitated to entertain original mandamus actions in order to settle important procedural problems of broad public concern. (People ex rel. Noren v. Dempsey, 10 Ill.2d 288; People ex rel. Terry v. Fisher, 12 Ill.2d 231.) A decision on the merits of this case would no more make it necessary to entertain a flood of applications to review interlocutory orders by mandamus than did the decisions in those cases. Once the governing principles are established, so that discretion will be exercised in the light of relevant considerations, repeated exercise of original jurisdiction by this court would be unnecessary.
Two extraneous considerations merged in this case to prevent the trial judge from exercising his discretion in ruling upon the motion. They appear in his oral opinion in which he carefully and explicitly stated the arguments that had been pressed upon him and the reasons for his denial of the motion. He said:
“This matter of these motions of forum non conveniens is an attempt, in my opinion, to deprive the plaintiffs of a substantial right given to them by the Act. If there is anything wrong or to be corrected in that regard, in my opinion it is a matter for the Legislature to correct and not for the courts to do by indirection.
“I know that courts have, and I know that there is a present tendency of courts to refuse jurisdiction where the accident occurs at a great distance, and they do it upon many grounds. But the net result of it is to deprive a plaintiff of a statutory right.
“I don’t think it should be done in this manner. Apparently, the Legislature must have had some good reason in not confining the plaintiff to the particular territory where the accident happened but saw fit to give him a wide latitude so far as picking his forum is concerned.. That shouldn’t be taken away by the courts under the guise of forum non conveniens — at least unless there is more of a showing than is contained in either of these cases.”
What has happened is apparent. The trial judge either refused to consider the factors that are relevant, or he improperly depreciated them to a non-existent status, because he was of the opinion that if he considered them he would “deprive the plaintiff of a statutory right.” This supposed legal barrier, in the form of a legislatively granted choice of a forum, dominated the trial judge to the exclusion of pertinent considerations of fact. Yet the assumed barrier simply does not exist. Section 6 of the Federal Employers’ Liability Act governs venue in the Federal courts. It says nothing about the venue of actions in State courts. Congress has not attempted to regulate, if indeed it has power to regulate, the venue of actions in the State courts. See, Missouri ex rel. Southern Railway Co. v. Mayfield, 340 U.S. 1.
The Supreme Court of Oklahoma directed that this case, originally filed in that State, be dismissed on forum non conveniens grounds. (Atchison, Topeka & Santa Fe Railway Co. v. District Court, 298 P.2d (Okla.) 32.) In its opinion that court said: “With the possible exception of the factor of the plaintiff administrator’s residence within this state, the case is a prime example of the type of case to which the doctrine of forum non conveniens should be applied. The decedent was a resident of the State of New Mexico. The wreck in which he lost his life occurred in the State of New Mexico. The surviving widow and children for whose benefit the action is brought reside in New Mexico. Every known witness to possibly be called upon to testify in the case resides in New Mexico.”
By a curious inversion the trial judge decided that because the action could not properly be maintained in Oklahoma, Illinois therefore became an appropriate forum. After the excerpt set forth above, his opinion continues:
“Now what do we have in this Santa Pe case? Apparently the plaintiff did not see fit or did not want, whatever the reason may be, to exercise a right to sue in the State of New Mexico. Suit was filed in Oklahoma, which was about as close to New Mexico as you could get, so far as a forum is concerned. Under the statute she had that right, but for some reason the Oklahoma courts saw fit not to take jurisdiction of that.
“Now if every other state through which the Santa Ee does business — if every other state would take the same attitude, then the plaintiff would be required to go into the State of New Mexico, and the choice given to her under the Act would go out the window.”
Again the ruling rests upon the assumed right of the plaintiff in an E.E.L.A. case to make a choice of a forum that is binding upon the court that he chooses. No such right exists. And certainly the refusal of the Oklahoma courts to entertain this case does not make Illinois an appropriate forum.
These are unmistakably the grounds upon which the trial judge acted. Not only are they the reasons stated in his opinion; they are the grounds stated in his brief in this court. He says:
“The order below denying the motion to dismiss resulted from the exercise of this respondent’s discretion that: “a. Congress have the plaintiff his choice of forum.
“b. Defendant company (petitioner) succeeded in having plaintiff’s action in this matter dismissed in Oklahoma, on the ground of forum non conveniens. To grant the motion here would, in effect (the claim arose July 5, 1955)? give the defendant company the choice of forum, contrary to the provisions of the Act.
“c. On a balance of equities between the plaintiff’s statutory right to choose his forum, and the inconvenience to defendant brought about by its own act, this respondent allowed the plaintiff to remain in the Circuit Court of Cook County.”
The only connection that this case has with Illinois is that defendant railroad does business here. That fact is not of significance in determining a motion forum non conveniens because such a motion assumes that the court has jurisdiction over the defendant. The contention of the plaintiff that he should be allowed to import this case into Illinois rests in part, as the trial judge put it, upon the fact that his attorney “who has apparently heretofore been the subject of certain litigation in the State of New Mexico, shouldn’t be required to go into New Mexico, because to do so would require him to answer the charges apparently now pending against him in the State of New Mexico, and that this court should not require him to do so.” The trial judge did not rest his decision upon this “most peculiar argument,” but said, “In fact, I am rather shocked that it would be urged.”
Other irrelevant arguments were pressed upon the trial judge, but he properly rejected them and they need not be considered here. It is apparent, however, that because of the legal misconceptions that have been discussed he failed completely to exercise his discretion with respect to the issues upon which his decision should have turned. He concedes in this court that “the defendant does have ‘great inconvenience’ and may be ‘unduly . burdened.’ ” It was his duty, then, to examine the record for factors related to the parties or to the proof that would make it appropriate to impose on the defendant, and upon the heavily overburdened courts of Cook County, the trial of this case. Unless he found such factors, the motion should have been granted.
Mr. Chief Justice Davis joins in the foregoing dissenting opinion.