No. 88-438
88-470
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
No. 88-438
DAVID HAUG, z
c
P l a i n t i f f and Respondent, o
z
-vs- 3 . l
z c3
BURLINGTON NORTHERN RAILROAD COMPANY, +::
Defendant and Appellant. cn 5 -
No. 88-470
HERBERT LAY,
Plaintiff and R e s p o n d e n t ,
-VS-
RURTAINGTOM NORTHERN RAILROAD COMPANY,
D e f e n d a n t and A p p e l l a n t .
A P P E A L S FROM: D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of C a s c a d e ,
T h e H o n o r a b l e T h o m a s M c K i t t r i c k ( 8 8 - 4 3 8 ) and H o n o r a b l e
J o h n M. M c C a r v e l ( 8 8 - 4 7 0 ) , J u d g e s p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
J. M i c h a e l Young; Jardine, Stephenson, B l e w e t t & B l e w e t t ,
G r e a t Falls, Montana (88-436)
H e r b e r t L . P i e r c e , 111, C r o w l e y , H a u g h e y , H a n s o n , T o o l e
and D i e t r i c h , B i l l i n g s , M o n t a n a ( 8 8 - 4 7 0 )
For R e s p o n d e n t :
A l e x a n d e r B l e w e t t , 111; H o y t & B l e w e t t , G r e a t F a l l s ,
Montana ( 8 8 - 4 3 8 and 8 8 - 4 7 0 )
K u r t f l . J a c k s o n , Hoyt C B l e w e t t , ( 3 8 - 4 3 3 6 8 8 - 4 7 0 )
,
For A m i c u s C u r i a e :
J o h n b7. L a r s o n , N i s s o u l a , M o n t a n a ( 8 8 - 4 3 8 & 8 8 - 4 7 0 )
S u b m i t t e d on B r i e f s : Dec. 9, 1988
Deoided: March 7, 1989
Mr. Justice Fred LT. Weber delivered the Opinion of the Court.
The two cases of Haug v. Rurlington Northern and Lay v.
Burlington Northern have been consolidated for our consider-
ation since the identical issues are raised in each case. In
both cases, Burlington Northern appeals the decision of the
District Court for the Eighth Judicial District, Cascade
County, denying its motion for a change of venue. We affirm
the District Court's denial of that motion.
We rephrase the issues presented as follows:
1. What is the proper county in which to bring a tort
action against a nonresident defendant, and does that rule
apply in FELA actions?
2. Is the court empowered to change the place of trial
of FELA actions based on the doctrine of forum non conveniens
or the Montana venue statues?
The pl-aintif s
f brought separate actions against
Rurlington Northern (BN) to recover damages under the Federal
Employers Liability Act (FELA), 4 5 U.S.C. 5 1 et seq.
(1982). Mr. Haug's suit is based on an injury which occurred
in the BN shop in Park County, Montana. Mr. Lay's suit is
based on an injury which occurred in the course of his em-
ployment with BN in Lewis and Clark County, Montana.
Both defendants brought claims in state court in Cascade
County, which has no connection to either suit. BN filed
motions for a change of venue, contending that in each case,
the proper county was the county in which the tort occurred.
Since the plaintiffs did not choose those counties, BN argued
that it was entitled to a change of venue in both cases. The
District Court denied BN's motions and BN appeals.
Some changes were enacted in our venue statutes by the
1 9 8 5 Session Laws. In those enactments, the legislative
history indicates that the legislature was not attempting to
change the past venue practices in Montana. The significant
sections for the issues in the present cases are set forth as
follows:
25-2-111.Scope of part. The proper place of trial
(venue) of a civil action is in the county or
counties designated in this part.
25-2-112. Designation of proper place of trial not
jurisdictional. The designation of a county in
this part as a proper place of trial is not juris-
dictional and does not prohibit the trial of any
cause in any court of this state having
jurisdiction.
25-2-113. Power of court to change place of trial.
The desisnation i n this part of a properplace of
trial does not affect the power of a court to
change the place of a trial for the reasons stated
in 2 5 - 2 - 2 0 1 ( 2 ) or ( 3 ) , or pursuant to an agreement
of the parties as provided in 2 5 - 2 - 2 0 2 .
25-2-114. Right of defendant --- change -
to move for of
place of trial. If an action is brought in a
county not designated as the proper place of trial,
a defendant may move for a change of place of trial.
to a designated county.
25-2-115. Multiple proper counties. If this part
desisnates more than one county as a proper place
d
of trial for any action, an action brought in any
such county is brought in a proper county and no
motion may be granted to change the place of trial
upon the ground that the action is not brought in a
proper county under 2 5 - 2 - 2 0 1 ( 1 ) . If an action is
brought in a county not designated as a proper
place of trial, a defendant may move for a change
of place of trial to any of the designated
counties.
25-2-118. Residence of defendant. Unless other-
wise specified in thispart:
(1) except as provided in subsection (3) , the
proper place 0-f trial for all civil actions is the
county in which the defendants or any of them may
reside at the commencement of the action;
(2) if none of the defendants reside in the
state, the proper place of trial is any county the
plaintiff designates in the compl-aint;
25-2-122. Torts. The proper place of trial for a
tort action is:
(1) the county in which the defendants, or
any of them, reside at the commencement of the
action; or
(2) the county where the tort was committed.
. . .
25-2-201. When change of venue required. The
court or judge must, on moFion, change the place of
trial in the following cases:
(1) when the county designated in the corn--
plaint is not the proper county;
(2) when there is reason to believe that an
impartial trial cannot be had therein;
(3) when the convenience of witnesses and the
ends of justice would be promoted by the change.
We do point out that 5 s 25-2-111 - 115, MCA, all were enacted
as a part of the 1985 statutes.
What is the proper county in which to bring a tort
action against a nonresident defendant, and does that rule
apply in FELA actions?
From the case history in Montana, we conclude that a
plaintiff is entitled to bring a tort action against a non-
resident defendant in either the county where the tort oc-
curred or in any county of this State. This Court has
consistently held that a foreign corporation has no county of
residence for venue purposes and can be sued in any county
selected by the plaintiff. Hanlon v. Great Northern Railway
Co. (1928), 83 Mont. 15, 268 P. 547; Truck Insurance ~ x c h a n g e
v. N.F.U. Property and Casualty Co. (19671, 149 Mont. 387,
42? P.2d 50; Foley v. General Motors Corp. (19?2), 159 Mont.
469, 499 P . ? d 774. The holdinqs of these cases are
consistent with the provisions of S 25-2-118(2), MCA, which
in substance states that any county designated by the plain-
tiff is the proper place of trial if no defendants reside in
Montana.
If a plaintiff does not designate a proper county in the
complaint, S 25-2-201, MCA, requires that the court must, on
motion, change the place of trial. Since, under S
25-2-118(2), MCA, any county which the plaintiff selects is a
proper county for venue purposes, a nonresident defendant is
not entitled to a change of venue for the reason that the
plaintiff has chosen an improper county. Morgen and Oswood
v. U.S.F. Ec G. (1975), 167 Mont. 64, 535 P.2d 170. In
Morqen, this Court reached that conclusion even where alter-
native venues were authorized by statute, as in contract or
tort actions. Thus, even though a tort cause of action may
be brought in the county where the tort occurred, the "any
county" option of 5 25-2-118(2), MCA, remains a proper county
for venue purposes where none of the defendants reside in
Montana. See Tassie v. Continental Oil Co. (D-Mont. 1964),
228 F.Supp. 807. Our statutory provisions are consistent
with the holdings in the above cases.
Section 25-2-115, MCA, provides that where two or more
counties are designated as proper counties, the defendant is
not entitled to a change of venue if the plaintiff chose one
of those counties. As previously mentioned, S 25-2-118 (2),
MCA, allows the plaintiff to choose any county if none of the
defendants reside in Montana. Section 25-2-122, MCA, pro-
vides that the proper place of trial for a tort action is the
county where the tort was committed. As a result, under
these code sections, in a tort action against a nonresident
defendant, the plaintiff may choose either the county where
the tort was committed or any county in the State of Montana,
and the defendant is not entitled to a change of venue under
5 25-2-115, MCA.
BN's only argument against this statutory interpretation
centers on our holding in the case of McAlear v. Kasak (Mont.
1987), 731 P.2d 908, 44 St.Rep. 81, which interpreted the
venue statutes following their amendment in 1985. BN argues
that the language preceding 5 25-2-118, MCA, limits its
applicability so that the plaintiffs in these cases are not
entitled to choose the "any county" option of $ 25-2-118(2),
MCA. The language at the beginning of 5 25-2-118, MCA, does
state, "Unless otherwise specified in this part." In
McAlear, this Court held that because venue is otherwise
specified in the tort exception of 5 25-2-122, MCA, the only
proper county the the tort.
We recognize that the holding in McAlear appears to he a
logical conclusion based alone on the wording in 5 s 25-2-118
and 112, MCA. However, that holding is not consistent with
the previousl-y cited decisions in Montana. As a result, as
set forth in the following discussion, we conclude that It is
necessary to overrule McAlear.
We recognize that the venue statutes were amended in
1985 and that the language, "Unless otherwise specified in
this part" was added to replace the phrase "in all other
cases. " However, case law has never interpreted either
phrase to be limiting or determinative of whether a plaintiff
has an option in choosing a proper county. A review of the
case law set forth earlier in this opinion reveals a liberal
interpretation of our statutes regarding a plaintiff's choice
of forum between the general rule of venue (now set forth in
S 25-2-118, MCA) and the exceptions to that general rule.
Furthermore, it is clear from the following stated objectives
presented to the legislature by the Supreme Court Commission
that the intent was to codify the previous venue decisions of
this Court:
The new statutes proposed. in this draft have three
objectives:
(1) to include in the Montana Code Annotated those
rules which have been declared and are settled by
the Montana Supreme Court but are not now stated in
the Code;
(2) to change the language, without changing the
meaning, of the sections that have caused the most
litigation (primarily by substituting the desiqna-
tion "proper place of trial" for the ambiguous
command that cases "shall," "may," or "must," be
tried in particular counties);
(3) to settle the few matters where there is still-
a seeming ambiguity, following the qeneral princi-
ples along the lines that the Court seems to feel
would be best derived from what the Court has held
in other situations.
"Recommendations for Revisions in Venue Statutes Prepared by
the Montana Supreme Court Commission on the Rules of Evi-
dence;" Exhibit 1 to Senate Judiciary Committee Minutes of
January 22, 1985.
In view of the clear intent not to change the previous
venue decisions of this Court, we conclude that the words
"unless otherwise specified in this part" in S 25-2-118, MCA,
are not limiting words so far as paragraph (2) of that sec-
tion is concerned. Therefore, if none of the defendants
reside in Montana, a plaintiff may choose any county in the
state as the place of trial of a tort action, notwithstanding
the alternate choice of venue under 5 25-2-122, MCA. This
conclusion is required under the prior decisions of this
Court. We hold that McAlear is overruled.
Whether this conclusion should apply in FELA cases has
not been specifically addressed by this Court. The federal
statute authorizes an injured plaintiff to file suit in
either federal or state court. Actions filed in federal.
c o u r t h a v e t h r e e p o s s i b l e p l a c e s which a r e p r o p e r f o r venue
purposes: (1) t h e c o u n t y where t h e d e f e n d a n t r e s i d e s ; (2)
t h e c o u n t y where t h e c a u s e o f a c t i o n a r o s e ; o r ( 3 ) t h e c o u n t y
where t h e d e f e n d a n t d o e s b u s i n e s s . 45 U.S.C. 5 56.
In FELA actions brought in state court, the United
States Supreme C o u r t has indicated that venue i s properly
l e f t t o t h e p r a c t i c e o f t h e forum. M i l e s v. I l l i n o i s Central
Railroad (1942), 315 U.S. 698, 703, 62 S . C t . 827, 830, 86
L.Ed 1 1 2 9 , 1134. While i t c a n b e s a i d t h a t o u r s t a t e venue
statutes dictate the "practice" of our forum, we are also
concerned w i t h c e r t a i n p o l i c i e s s e t f o r t h i n p r e v i o u s FELA
c a s e s i n d e t e r m i n i n g o u r forum p r a c t i c e . Specifically, this
Court has stated that the FELA i s t o be given a liberal
construction i n favor of i n j u r e d r a i l r o a d employees s o t h a t
it may a c c o m p l i s h h u m a n i t a r i a n and r e m e d i a l p u r p o s e s , f o l l o w -
i n g t h e p o l i c y s e t f o r t h by t h e U n i t e d S t a t e s Supreme C o u r t
i n Urie v. Thompson ( 1 9 4 9 ) , 337 U.S. 1 6 3 , 69 S . C t . 1018, 93
L.Ed. 1282. See S t a t e ex r e l . Burlington Northern R a i l r o a d
Co. v . D i s t r i c t C o u r t (Mont. 1 9 8 7 ) , 746 P.2d 1077, 4 4 S t . R e p .
2003; Bevacqua v. B u r l i n g t o n N o r t h e r n , I n c . ( 1 9 7 9 ) , 183 Mont.
237, 598 P.2d 1124; and L a B e l l a v . B u r l i n q t o n N o r t h e r n , I n c .
( 1 9 7 9 ) , 182 Mont. 202, 595 P.2d 1184.
The open d o o r p o l i c y e x p r e s s e d i n t h o s e c a s e s i s f o l -
lowed i n t h i s o p i n i o n . W hold t h a t t h e p l a i n t i f f s i n t h i s
e
c a s e were e n t i t l e d t o b r i n g t h e i r FELA a c t i o n s i n e i t h e r t h e
c o u n t y where t h e i n j u r y o c c u r r e d , o r i n any county i n t h i s
State. S i n c e t h e y h a v e c o r r e c t l y done s o , t h e d e f e n d a n t R N
i s not entitled to a change of venue under S 25-2-201(1),
MCA .
I1
Is the court empowered to change the place of trial of
FELA actions in light of the doctrine of forum non conveniens
and the Montana venue statutes?
The common law doctrine of forum non conveniens allows a
court to "resist imposition upon its jurisdiction even when
jurisdiction is authorized by the letter of a general venue
statute." Gulf Oil Corp. T J . Gilbert (1947), 330 U.S. 501,
507, 67 S.Ct. 839, 842, 91 L.Ed. 1055, 1062. Under the
doctrine, a court may decline to exercise its jurisdiction
when it believes that the action may be more appropriate1.y
and justly tried elsewhere.
This doctrine is codified in Montana at 5 25-2-201, MCA,
which states in relevant part:
The court or judge must, on motion, change the
place of trial in the following cases:
...
(2) when there is reason to believe that an impar-
tial trial cannot be had therein;
(3) when the convenience of witnesses and the ends
of justice would be promoted by the change.
In the context of FELA cases, this Court has discussed
the applicability of the common law doctrine of forum non
conveniens without reference to our statutorv venue scheme or
the codification of that doctrine. These cases are the same
as those set forth above in reflecting the "open court poli-
cy" and "liberal construction" of the FELA. State ex rel. BN
v. District Court, supra; Bevacqua 77. BN, supra; LaBella v.
- supra; see also State ex rel. Great Northern Railway Co.
BN,
v. District Court (1961), 139 Mont. 453, 365 P.2d 512; Rracy
v. Great Northern Railway Co. (1959), 136 Mont. 65, 343 P.2d
848. Recognizing the open court policy stated in our Montana
Constitution and the FELA policy favoring the injured railway
worker's choice of forum, this Court has held the doctrine of
forum non conveniens inapplicable to FELA actions brought in
Montana's district courts.
We would point out that Montana's position in this
regard is not taken in the federal courts following the
enactment of 28 U.S.C. S 1404(a) in 1948. That statute
provides :
For the convenience of parties and witnesses, in
the interest of justice, a district court may
transfer any civil action to any other district or
division where it might have been brought.
This statute was held to apply to FELA actions brought in
Federal District Court in ex parte Collett (1949), 337 U.S.
55, 69 S.Ct. 944, 93 L.Ed. 1207. Collett was also followed
by the United States Supreme Court in deciding whether a
state court has the power to dismiss a FELA action on the
ground of forum non conveniens. Southern Ry. Co. v. Mayfield
(1950), 340 U.S. 1, 71 S.Ct. 1, 95 L.Ed. 3. In that case,
the Court said that a state was not compelled to entertain
FELA cases brought in its courts but could, "According to its
own notions of procedural policy . . .reject, as it may
accept, the doctrine for all causes of action begun in its
courts." 340 U.S. at 3.
Montana first rejected the applicability of the doctrine
in LaBella, stating that:
We fully recognize that the state is not
constrained by federal law to reject the doctrine
of forum non conveniens in FELA actions. However,
we find the policy favoring the injured railroad
worker's choice of forum to be highly persuasive.
This, in addition to the state's "open court poli-
cy" compels this Court to hold the doctrine of
forum non conveniens inapplicable to FELA suits
filed in Montana District Courts. We repeat the
warning set forth in State ex rel. Great Northern
Ry., supra 139 Mont. at 457, 365 P.2d 514. "[Ilf a
substantial increase in this type of litiqation is
called to our attention in the future we will
reexamine the situation in light of what we have
herein stated."
Our decision is a narrow one. We have not
been confronted by the application of forum non
conveniens in non-FELA cases and our holding today
does not purport to deny or recognize the existence
of the doctrine in cases where there is no strong
policy favoring plaintiff's selection of forum.
The holding in LaBella has been followed in subsequent
cases. In addition, in no FEZA action has there been suffi-
cient proof of a substantial increase in this type of litiga-
tion sufficient in quantity to require any limitation on the
plaintiff's choice of forum. The foregoing case analysis
under the doctrine of forum non conveniens applies equally to
the provisions allowing a court to change the place of trial
in S 25-2-201, MCA. We therefore hold that in FELA cases
neither the doctrine of forum non conveniens, nor the right
to change of place of trial contained in S 2 5 - 2 - ? 0 1 , MCA, is
available.
We affirm the denial of BN's motion for a change of
venue.
We Concur: