(concurring). I concur in the reversal of this case; but I regret very much to see the majority adopt by judicial legislation the doctrine of forum non conveniens in regard to transitory tort actions.1 This is the usual transitory tort action: the plaintiff is a resident of Missouri; the alleged tort occurred in Illinois; and the suit is brought in Arkansas where service was obtained on the defendant. The defendant interposed the plea of “forum non conveniens”; and this Court now sanctions that plea. I think the doctrine of forum non conveniens should not be applied to transitory tort actions, absent any legislative enactment. To demonstrate why I entertain such views is the purpose of this concurrence.
Volumes have been written on this (to Arkansas) new strange doctrine of forum non conveniens. In 35 Calif. Law Review (1947) at page 380 there is an exhaustive article on the subject; but I haver never yet found a good definition of forum non conveniens as applied to transitory tort actions. In Gulf Oil Co. v. Gilbert, 330 U. S. 501, 91 Law. Ed. 1055, 67 S. Ct. 839, the Court said: “The principle of forum non conveniens is simply that a Court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.” No one is imposing on the jurisdiction of the Arkansas courts when such a person files a transitory cause of action in this State. Our statutes on venue may be found in § 27-601 et seq. Ark. Stats. After prescribing the venue in various kinds of actions, § 27-613 says: “Every other action may be brought in any county in which the defendant ... is summoned.” The Constitution of the United States in Art. IV, Section 2, says: “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States”. If Running had been a citizen of Arkansas he could have maintained this cause of action in Arkansas. Why refuse him right to redress because he is a resident of Missouri! Notwithstanding what the Supreme Court of the United States said in Missouri ex rel. Southern Railway Co. v. Mayfield, 340 U. S. 1, 95 Law. Ed. 3, 71 S. Ct. 1, and in the other cases cited therein, I am still of the view that the doctrine of forum non conveniens, when applied in a State court on a transitory cause of action against a non-resident of. the State, is in violation of the said quoted section of the United States Constitution.2
Aside from the constitutional question, there are other reasons why I think the majority, in the case at bar, has made a mistake in adopting any part of the rule of forum non conveniens. Three points suffice:
I. The. majority is in effect overruling some of our earlier cases in point. In St. L. S. F. Ry. Co. v. Brown, 62 Ark. 254, 35 S. W. 225, the plaintiff was a resident of Indian Territory; the tort occurred in Missouri; and the railroad company was sued in Arkansas wherein it had an agent for service of process. The railroad company objected to the suit on a plea not designated as forum non conveniens in 1896, but almost to the same effect. This Court, in a unanimous opinion delivered by Chief Justice Bunn, said, and I quote at length:
“The principal argument of defendant’s counsel is devoted to its contention that, since plaintiff was a resident of the Indian Territory, and since the injury was done in the state of Missouri, and since the case must he. adjudicated according to the laws of the latter state, therefore it is contrary to the public policy of this state to lend the aid of her courts to settle the controversies of parties so situated, and thus the trial court was without jurisdiction. On this particular subject, we cannot better express our views than by quoting from others. In the case of the Chicago, St. Louis & New Orleans Railroad Company v. Doyle, 60 Miss. 977, Chief Justice Campbell, in delivering the opinion of the court, said: ‘The right of action for damages for killing a husband, given by the statute of Tennessee, may be asserted in the courts of this state, because of the coincidence of the statutes on this point, and, independently of this, because a right of action created by the statute of another state, of a transitory nature, may be enforced here, when it does not conflict with the public policy of this state to permit its enforcement; and our statute is evidence that our policy is favorable to such rights of action, insteading of being inimical to them . . .’ —citing Dennick v. Railroad Co., 103 U. S. 11; Nashville etc. R. Co. v. Sprayberry, 8 Baxter 341; Selma etc. Ry. Co. v. Lacey, 49 Ga. 106; Leonard v. Columbia etc. Co., 84 N. Y. 48 . . .
“We append a list of authorities touching each phase of this question, or rather the reason of the rule from the different standpoints from which the question has been discussed. The common law rule is that, where the right of action is transitory in its nature, courts everywhere, when the defendant may be lawfully summoned to appear therein, have jurisdiction; and, when the suit is governed by statute of the state in which the injury is committed, courts of another state, having similar laws, or where it is not contrary to its public policy, will enforce such laws, by the rule of comity. Eureka Springs R. Co. v. Timmons, 51 Ark. 459; Boyce v. Ry. Co., 63 Ia. 70; Morris v. R. I. & Pacific R. Co., 65 Ib. 727; Herrick v. M. & St. L. R. Co., 31 Minn. 11; Tex. & Pac. R. Co. v. Cox, 145 U. S. 593; Wintuska v. L. & N.R. Co.; 20 S. W. 819.”
Our holding in the foregoing case allowed a transitory tort action to be brought in this State wherever service of process could be obtained. Other cases on down through the years reaffirming this rule are: St. L.I.M. & S. Ry. Co. v. Haist, 71 Ark. 258, 72 S. W. 893; Viking Frt. Co. v. Keck, 202 Ark. 663, 153 S. W. 2d 166, 152 S. W. 2d 554; and Yockey v. St. L. S. F. Ry. Co., 183 Ark. 601, 27 S. W. 2d 694. In the light of these cases recognizing the right of a plaintiff to bring a transitory tort action in any jurisdiction in Arkansas in which the defendant could be served, I cannot see how this Court can now recede from these holdings and embrace this new and strange doctrine of forum non conveniens.
II. In adopting the rule of forum non conveniensthis Court is engaging in judicial legislation. As here-. tofore stated, our various statutes on venue may Tbe found in § 27-601 et seq. Ark. Stats. After prescribing the venue in various kinds of action, § 27-613 says: “Every other action may be brought in any county in which the defendant ... is summoned.” In Chambers v. Gray, 203 Ark. 858, 158 S. W. 2d 926, we held that plaintiff’s cause of action for injuries sustained in an auto collision in another state was a transitory cause of action and — under said § 27-613 — could be brought in any court in which service could be obtained on the defendant. Section 27-613 has not been changed by the Legislature. But the majority is amending it in the case at bar.
Hon. Robert A. Leflar3 in his volume on “Conflict of Laws” in § 82 has the following:
“Generally speaking, causes of action for tort are transitory, that is, can be sued upon anywhere that service is had on the defendant tort feasor.”
After pointing out that Arkansas regularly allowed such suits, Dr. Leflar has this to say regarding the rule of forum non conveniens:
“A few states apply discretionary doctrine of forum non conveniens to exclude suits between non-resident parties on foreign causes of action, on the theory that they can be more fairly and less expensively tried at some other forum, but Arkansas has not yet availed itself of this useful exclusionary rule; . . .” and in § 6 of the same volume Dr. Leflar, in speaking further of forum non conveniens, says: “In states like Arkansas where the doctrine has not yet been established, a statute may be necessary to establish it
Now, since 1938 the leading Arkansas authority on conflict of laws has been of the opinion that it would take a legislative enactment to put into effect in Arkansas this doctrine of forum non conveniens in transitory tort actions; yet this Court is now adopting the doctrine without any legislation. Therefore, I insist that the majority is engaging in judicial legislation.
III. The majority adopts the doctrine of forum non conveniens hut leaves it undefined and unlimited. No one can now tell, from the majority opinion in this case, what kind of evidence a defendant would he required to offer to a trial court in order to get that court to hold that the doctrine of forum non conveniens applied. None of the Federal cases would help in the matter because the Federal rule on forum won conveniens is for a transfer of the proceedings and not a dismissal. In U.S.C.A. Title 28, § 1404, the statute reads: “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 . . .” It is one thing to transfer a pending suit to some other court nearer to the place of the witnesses — as is the Federal rule —■ and quite another thing to outright dismiss a case. Furthermore, if the dismissal is because the defendant is a non-resident, I maintain that such constitutes a discrimination against him under the United States Constitution previously mentioned.
CONCLUSION
So I reiterate, the majority opinion in adopting the rule of forum non conveniens in regard to transitory tort actions is departing from our ancient holdings, and embracing a new doctrine that embarks us on a sea of “discretionary jurisdiction” which will take us years to adequately define.
Grovey v. Washington Natl. Ins. Co., 196 Ark. 697, 119 S. W. 2d 503, was not a transitory tort action, but rather a foreign contract matter. There is a big distinction between actions ex contractu and actions ex delecto.
For cases from some courts either directly holding or pointing in the direction stated, see Eingartner v. Ill. Steel Co., 94 Wis. 70, 68 N. W. 664, 59 Am. St. Rep. 859, 34 L. R. A. 503; Morgan v. Neville, 74 Pa. 57; Steed v. Harvey, 18 Utah 367, 54 Pac. 1011, 72 Am. St. Rep. 789 ; Bourestom v. Bourestom, 231 Wis. 666, 285 N. W. 426.
Former Dean of the University of Arkansas School of Law and former Justice of the Arkansas Supreme Court.