No. 14493
I N THE SUPREME COUKC OF THE STATE: O M3JTCANA
F
1979
MICHAEL A. L B ,
A- J.
R,
Plaintiff and Appellant,
BmIN- NORrHE.RN, m.,
a corporation,
Defendant and Respondent.
Appeal f r m : D i s t r i c t Court of the F i r s t J d i c i a l D i s t r i c t ,
Honorable Gordon R. Bennett, Judge presiding.
Counsel of Record:
For Appellant:
Hoyt and Lewis, Great Falls, frlontana
John C. Hoyt argued, Great Falls, Wntana
F r Respondent:
o
Kurt W. Kroschel argued, Billings, Wntana
Suhnitted: March 26, 1979
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Plaintiff appeals from an order of the District Court
for Lewis and Clark County dismissing his complaint on the
ground that suit was brought in an inconvenient forum.
Plaintiff is a resident of Spokane, Washington and has
been employed by defendant railroad since 1947. Defendant, a
Minnesota corporation, is a common carrier doing business in
Montana and throughout the northwest. Plaintiff alleges that
while inspecting and engaging air hoses between freight cars
in defendant's Spokane train yard he tripped on some loose
boards and was seriously injured. He filed a personal injury
suit in Lewis and Clark County District Court under the Federal
Employer's Liability Act (FELA), 45 U.S.C. §51 et seq., and de-
fendant moved to dismiss on the ground of forum non conveniens.
After argument on the motion and consideration of both
partys' affidavits, the District Court issued a memorandum
decision and ordered the action dismissed. The trial judge noted
the pertinent Montana case law and concluded that the applica-
tion of forum non conveniens was within his discretion. State
ex rel. Great Northern Ry. v. District Court (1961), 139 Mont.
453, 365 P.2d 512; Bracy v. Great Northern Ry. (1959), 136 Mont.
65, 343 P.2d 848. The issue on appeal is whether a District
Court of this state may dismiss a FELA action because it deems
itself an inconvenient forum. We hold that it may not.
Simply stated:
"The rule of forum non conveniens is an equit-
able one embracing the discretionary power of
a court to decline to exercise the jurisdiction
it has over a transitory cause of action when
it believes that the action before it may be
more appropriately and justly tried elsewhere."
Leet v. Union Pac. R. Co. (1944), 25 Cal.2d 605,
609, 155 P.2d 42, 44.
Under the doctrine, "a court may resist imposition upon its juris-
diction even when jurisdiction is authorized by the letter of a
g e n e r a l venue s t a t u t e . " Gulf O i l Corp. v. G i l b e r t ( 1 9 4 7 ) ,
330 U.S. 501, 507, 9 1 L.Ed 1055, 1062, 67 S.Ct. 839, 842. The
p o l i c y b e h i n d t h e r u l e i s t o a l l o w t h e c o u r t t o d i s m i s s an
a c t i o n when it f e e l s t h e c a u s e can be more e a s i l y d i s p o s e d o f
I i n another court. Once d i s m i s s e d , t h e a c t i o n i s n o r m a l l y com-
I menced anew i n a d i f f e r e n t , more c o n v e n i e n t forum.
The a p p l i c a b i l i t y o f forum non c o n v e n i e n s t o FELA ac-
t i o n s h a s p r e v i o u s l y been b e f o r e t h i s C o u r t . S t a t e ex rel.
G r e a t N o r t h e r n Ry. v. D i s t r i c t C o u r t , s u p r a ; Bracy v. G r e a t
I N o r t h e r n Ry., supra. I n t h o s e c a s e s d e f e n d a n t r a i l r o a d moved t o
d i s m i s s on t h e ground of forum non c o n v e n i e n s and i n e a c h i n s t a n c e
t h e t r i a l c o u r t d e n i e d t h e motion. I n Bracy a t 68, t h e t r i a l
c o u r t " e x p r e s s e d d o u b t a s t o whether t h e d o c t r i n e . . . has any
I a p p l i c a t i o n i n Montana," b u t r u l e d i f it d i d , t h e f a c t s of t h e
case d i d not warrant i t s application. On a p p e a l , t h i s C o u r t ex-
p r e s s l y d e c l i n e d t o d e c i d e i f t h e d o c t r i n e was v i a b l e . Bracy,
s u p r a a t 68. The b a s i s o f t h e d e c i s i o n w a s t h a t , assuming t h e
d o c t r i n e ' s e x i s t e n c e , t h e r e was no a b u s e o f d i s c r e t i o n i n f a i l i n g
t o dismiss. I n S t a t e e x r e l . G r e a t N o r t h e r n Ry., s u p r a , Bracy
was f o l l o w e d . The c o u r t s t a t e d : "We do n o t f e e l j u s t i f i e d i n
t h i s instance t o establish the rule." S t a t e e x r e l . G r e a t Nor-
t h e r n Ry., s u p r a , a t 457.
~ T h i s i s t h e o n l y c a s e t o come b e f o r e u s where a ~ i s t r i c t
C o u r t h a s d i s m i s s e d an a c t i o n on t h e ground it c o n s i d e r s i t s e l f
a n i n c o n v e n i e n t forum. W e a r e thus f o r t h e f i r s t t i m e squarely
f a c e d w i t h t h e r e l a t i o n of forum non c o n v e n i e n s t o FELA a c t i o n s .
S e c t i o n 6 of t h e FELA, 45 U.S.C. 856, reads a s follows:
"Under t h i s c h a p t e r an a c t i o n may be b r o u g h t i n
a d i s t r i c t c o u r t o f t h e United S t a t e s , i n t h e
d i s t r i c t of t h e residence of t h e defendant. o r
i n which t h e c a u s e o f a c t i o n a r o s e , o r i n which
t h e d e f e n d a n t s h a l l be d o i n g b u s i n e s s a t t h e
t i m e of commencing such a c t i o n . The i u r i s d i c - - - -
t i o n o f t h e c o u r t s o f t h e United s t a t e s under
t h i s c h a p t e r s h a l l be c o n c u r r e n t w i t h t h a t of
the courts of the several States." (Emphasis
added. )
The District Courts of Montana clearly have jurisdiction.
Whether they have discretionary power to dismiss is determined
by state policy, as discussed infra, and by an examination of
Congressional intent in enacting and later in amending the FELA.
Ch. 149, 81 et seq., 35 Stat. 65 et seq. (1908), amended Ch.
143, S1, 36 Stat. 291 (1910).
The refusal of the nation's railroads to compensate
injured workmen was notorious; in a 1907 message urging Congress to
pass the FELA, President Theodore Roosevelt noted:
"The practice of putting the entire burden of
loss to life and limb upon the victim or the
victim's family is a form of social injustice
in which the United States stands in unenviable
prominence." 45 Cong.Rec. 4040 (1910).
The United States Supreme Court has repeatedly noted that
the FELA is to be given a liberal construction in favor of injured
railroad employees so that it may accomplish humanitarian and
remedial purposes. See Urie v. Thompson (1949), 337 U.S. 163,
69 S.Ct. 1018, 43 L.Ed 1282; Coray v. Southern Pacific Co. (1949),
335 U.S. 520, 60 S.Ct. 275, 93 L.Ed 208; McGovern v. Philadelphia
& Reading R.R. (1914), 235 U.S. 389, 35 S.Ct. 127, 59 L.Ed 283;
Steinberg, The Federal Employer's Liability Act and Judicial
Activism: Policymaking by the Courts, 12 Willamette L.J. 79
(1975).
In a Senate Committee Report, the purpose of the amend-
ment to section 6 H.R. 17263, 61st Cong., 2d Sess. (1910), was
said to be:
" . . .
to make entirely manifest the good
faith of the legislature in the enactment of
the employer's liability law, which places such
stringent liability upon the railroads for in-
juries to their employees as to compel the high-
est safeguarding of the lives and limbs of the
men in this dangerous employment. The tremen-
dous loss of life and limb on the railroads is
appalling .. .
"It was the intention of Congress in the enact-
ment of this law originally and it may be pre-
sumed to be the intention of the present Congress
to shift the burden of the loss resulting from
these casualties from 'those least able to bear
it' and place it on those who can . . . 'measurably
control their causes'." Sen.Rep. No. 432, 61st
Cong., 2d Sess., (1910), 45 Cong.Rec. 4041 (1910).
In reporting the bill out of committee, Senator Borah stated
his objection to the law as it existed:
"Plaintiff may sometimes be compelled to go a
great distance in order to have his cause of action
against the defendant by reason of the fact that
now the action must be brought in the district in
which the defendant is an inhabitant . ..
" ... If this bill should be passed the law will
be remedied in that respect, enabling the plaintiff
to bring his action where the cause of action arose
or where the defendant may be doing business. The
bill enables the plaintiff to find the corporation
at any point or place where it is actually carrying
on business and there lodge his action, if he chooses
to do so." 45 Cong.Rec. 4034-4035 (1910).
The strength of the policy behind section 6 can be further
gleaned from Congress' refusal to pass the Jennings Bill in 1947.
It would have repealed most of section 6 and limited the forum
choices of injured railroad workers to the district where the
cause of action arose or where the plaintiff resided. If process
could not be served in either of those places, an action could be
brought where defendant was doing business. H. R. 1639, 80th
Cong., 1st Sess., (1947).
In the leading case on forum non conveniens, Gulf Oil
Co. v. Gilbert, supra at 505, the United States Supreme Court
noted :
"It is true that in cases under the Federal
Employers' Liability Act we have held that plain-
tiff's choice of a forum cannot be defeated on
the basis of forum non conveniens. But this was
because the special venue act under which those
cases are brought was believed to require it."
Citing Miles v. Illinois Central R. Co. (1942),
315 U.S. 698, 62 S.Ct. 827, 86 L.Ed 1129;
Baltimore & Ohio R. Co. v. Kepner (1941), 314 U.S.
44, 62 S.Ct. 6, 86 L.Ed 28.
Insofar as the federal courts were concerned, the "special
venue act" lost its effect when 28 U.S.C. S1404(a) was enacted
in 1948. That section 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."
The Supreme Court, in ex parte Collette (1949), 337 U.S. 55, 69
S.Ct. 944, 93 L.Ed 1207, 10 ALR2d 921, held that "any civil action"
included suits brought in a Federal District Court under the FELA.
Notwithstanding the strong policy favoring plaintiffs' forum
selection, such actions were transferable under 28 U.S.C. 51404(a).
When faced with the issue of a state court's power to
dismiss a FELA case on the ground of forum non conveniens, the
court followed Collett. It said 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 [of forum non conveniens] for all causes of
action begun in its courts." Southern Ry. Co. v. Mayfield (1950),
340 U.S. 1, 3, 71 S.Ct. 1, 2, 95 L.Ed 3, 7. But see, Pope v.
Atlantic Coast R. Co. (1953), 345 U.S. 379, 73 S.Ct. 749, 97 L.Ed
The policy of the State of Montana is clearly announced
the State Constitution. "Courts of justice shall be open
every person, and speedy remedy afforded for every injury of per-
son, property, or character." 1972 Mont. Const., Art. 11, 516.
This constitutional right is unrestricted by reference to resi-
dence or citizenship. Indeed, such qualification could not pass
muster under the Privileges and Immunities Clause of Art. IV,
52 of the United States Constitution. Hicklin v. Orbeck (1978),
437 U.S. 518, 523-524, 98 S.Ct. 2482, 2487, 57 L Ed 2d 397, 403.
The Montana legislature has provided.
"A citizen of the United States who is not a citi-
zen of this State has the same rights and duties
as a citizen of this state who is not an elector.''
Section 83-407, R.C.M. 1947, now section 49-1-204 MCA.
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 in-
jured railroad worker's choice of forum to be highly persuasive.
This, in addition to the state's "open court policy" compels
this Court to hold the doctrine of forum non conveniens inappli-
cable to FELA suits filed in Montana District Courts. We repeat
the warning set forth in State ex rel. Great Northern Ry., supra
at 457. "If a substantial increase in this type of litigation 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 exis-
tence of the doctrine in cases where there is no strong policy
favoring plaintiff's forum selection.
Reversed and remanded.
Chief Justice
We concur:
Justices
C'1