(concurring and dissenting).
I concur in the discussion of the cases and the law, in the prevailing opinion, leading up to the conclusion that to permit a dismissal of a foreign action such as this, by applying the principle of forum non conveniens does not offend against the Federal Constitution; and I concur in that conclusion.
I would, however, enter upon the consideration of the application of that principle to a foreign cause of action be*344tween non-residents where the witnesses were not subject to our Court processes, with the question in mind: Why was it brought here? That question is one that the trial court might well ask, on his own motion without being guilty of prejudicial conduct. The propriety of that question lies in the fact that its answer may affect the interest of the citizens of this State to such an extent that the interest of the individual litigant must give way to the superior rights of the public of this State. The prevailing opinion appears to recognize the right of the Courts of this State to slow up a “bargain day rush.” It would seem to me that the plaintiff would have to show, to some extent, a reason why the case should be tried by a court that had no power to enforce the attendance of witnesses, should they get balky. That should be required as a matter of public interest and not as a matter to the interest of the opposing litigant. If the court should conclude that there was reason for entertaining the case, then opposing litigant could assume the burden of convincing him of error, if he so held.
This brings me to another point that I think should receive some special consideration. If the trial court makes a finding that his court calendars are congested — as was done here — we, as an appellate court should accept that finding with little or no question in our minds. After all, he, of all persons, is best able to judge of that fact, and his judgment should not be overthrown except by very strong evidence to the contrary; or by an obvious error appearing on the face of the record; or by a showing of an abuse of his discretion, or bias and prejudice, resulting in a conclusion against the evidence. Here, too, the trial court should be permitted to raise the matter on his own motion — this as a matter of public interest.
The third and last point I wish to mention is that of the status of the foreign calendars where the case may have to be tried, if dismissed from our court. I am not convinced that that issue is entitled to very great weight. Naturally *345it will affect the rights of the plaintiff who seeks to try his case in his State, but we must remember that the citizens of this State have not, as yet, contemplated the use of their courts as a haven of relief for citizens of a state whose judicial processes have become congested. In an isolated case or two, it probably would not be prejudicial to the interests of anyone to ascertain the condition of the foreign calendars, but to make it a regular requirement in cases such as this, is, in my opinion, unduly emphasizing its importance. I do not think it is a necessary element to consider.
These matters have received some consideration by the cases cited in the annotation in 32 A. L. R. 44.