Bland v. Norfolk & Western Railway Co.

JUSTICE GOLDENHERSH, dissenting:

I dissent. In its opinion the majority has effectively destroyed the choice of venue provided an injured employee who seeks recovery under the Federal Employers’ Liability Act ( 45 U.S.C. sec. 56 (1976)) and conferred upon the employer railroad the power to select the forum in which the employee’s action will be tried.

In Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501 , 91 L. Ed. 1055 , 67 S. Ct. 839 , the source of the doctrine of forum non conveniens adopted in this jurisdiction, the court enunciated the factors which are to be considered in its application, and said:

“The doctrine [of forum non conveniens] leaves much to the discretion of the court to which plaintiff resorts ***. *** [Ujnless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” 330 U.S. 501, 508 , 91 L. Ed. 1055, 1062 , 67 S. Ct. 839, 843 .

In its earlier opinions, this court followed Gulf Oil and appropriate deference was shown to the discretion of the trial court. In Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144 , the court acknowledged that the doctrine could apply in FELA cases and noted the congressional intent to confer upon the employee a broad choice of jurisdiction and venue.

Although in my opinion it occasionally erred in its decision that the denial of a motion was an abuse of discretion, as recently as Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111 , the court recognized that the plaintiff’s choice of forum should rarely be disturbed and that the circuit court’s forum non conveniens ruling should be affirmed unless there was an abuse of discretion. The court, however, went on to say that the doctrine was applicable “ ‘whenever it appears that there is another forum that can better “serve the convenience of the parties and the ends of justice.” [Citation.]’ ” Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 118 , quoting Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511 , 514.

In Foster v. Chicago & North Western Transportation Co. (1984), 102 Ill. 2d 378 , the majority eliminated the requirement that the allowance of the motion serve the ends of justice and substituted for the original doctrine the rule “that the case *** should be tried in a forum with a greater connection to the parties and the occurrence that forms the gravamen of the complaint.” ( 102 Ill. 2d 378 , 385.) In Haring v. Chicago & North Western Transportation Co. (1984), 103 Ill. 2d 530, 535 , as I demonstrated in my dissent, the doctrine was further modified so that the reversal no longer required that there be an abuse of discretion and that forum non conveniens could rest solely on the conclusion that as a matter of convenience the case should be tried in another forum.

I do not question the validity of the factors which the Supreme Court enumerated in Gulf Oil. It should be noted, however, that although the abstract principle might be the same, the factual situations in Gulf and the other cases cited by the majority differ greatly from this case. The exercise of discretion on the part of the circuit court requires the application of common sense to a set of facts, and under our long-standing definition of abuse of discretion, the decision of the court, made in the exercise of its discretion, should not be set aside unless the opposite conclusion is clearly apparent. That is not the situation here. In Gulf Oil the plaintiff brought the action in the Southern District of New York. He was a resident of Virginia and operated a public warehouse there. His action against the defendant was based on an alleged violation of an ordinance of the city of Lynchburg. The defendant was a corporation organized under the laws of Pennsylvania and qualified to do business in both Virginia and New York. The district court dismissed the action on the ground of forum non conveniens, and the court of appeals reversed. In reversing the court of appeals, the Supreme Court noted that there were 450 possible claims in the case and that there were questions concerning which jurisdiction’s law governed the case. In Piper Aircraft Co. v. Regno (1981), 454 U.S. 235 , 70 L. Ed. 2d 419 , 102 S. Ct. 252 , the plaintiffs were citizens and residents of Scotland, and the accident out of which the action arose occurred in Scotland. I submit that when the Supreme Court distinguished between “foreign” plaintiffs and “resident” plaintiffs, and stated that a resident plaintiff’s choice of forum is entitled to greater deference, it had in mind a resident of Scotland suing in California, and not a resident of Macon County, Illinois, bringing an action in Madison County, approximately 100 miles distant.

Having in its opinions eliminated the factors enunciated in Gulf which were to be considered prior to the application of the doctrine of forum non conveniens, and having substituted therefor a combination of the “convenience of the parties” and the “significant factual connection” rules, the majority applied the doctrine of Torres v. Walsh (1983), 98 Ill. 2d 338 , to reverse the trial and appellate courts and effect an intrastate transfer of this cause from Madison County. In my dissent in Torres I pointed out the fallacious premise upon which that opinion rests and need not lengthen this dissent by doing so again.

As the result of the foregoing opinions, cases reach this court after several years of litigating forum non conveniens. Although these cases are not at issue on the merits, they have attained an age and accumulated records greater than most cases which have been fully adjudicated in the circuit and appellate courts.

What has occurred in so many cases demonstrates the error in our original departure .from the sound and long-established rules first ignored in Horn v. Rincker (1981), 84 Ill. 2d 139 . Since that time this court has been deluged with motions for leave to file original actions in mandamus and prohibition and motions for supervisory orders. Since the amendment of Rule 306(a) to include rulings denying motions for dismissal on' grounds of forum non conveniens, the appellate court has been flooded with petitions for discretionary leave to appeal such rulings and this court with petitions for leave to appeal from the appellate court. This stems in part from the failure to recognize that, although the abstract principle may be the same, the situation where a foreign plaintiff sues as the result of an occurrence in a distant jurisdiction is vastly different from the situation presented here, where a resident of Illinois sues in a county 100 miles distant from the county in which he resides. Furthermore, it is disturbing that the majority decides that the judgment of a circuit judge concerning the state of his court’s docket is overruled by a four-year-old set of statistics from the Administrator’s office. Also, the majority has apparently overlooked the fact that if the defendant is doing business in Madison County, it is also being taxed there. There is no evidence that the expense of trial borne by the county exceeds its tax revenues received by reason of defendant’s presence there. In Brummett v. Wepfer Marine, Inc. (1986), 111 Ill. 2d 495 , the court said:

“Whether the forum chosen is a convenient one is a matter for the discretion of the trial court. (Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 77 ; Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 119 .) The responsibility of a reviewing court does not encompass determining whether the trial judge exercised his discretion wisely (Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill. 2d 1, 4 ), but only whether it has been abused.” ( 111 Ill. 2d 495, 503-04 .)

The proper application of that rule would require the affirmance of the judgment in this case.

In my dissent in Horn v. Rincker (1981), 84 Ill. 2d 139, 152-53 , I pointed out that as the result of that opinion this court will be required to consider requests for relief not authorized by statute or constitution, that the problem allegedly requiring our attention had historically been resolved by the circuit courts without our intervention, and that “this court is far too busy to spend its time refereeing races to the courthouse.” The end result of the majority opinion here is that this court will assume the added burden of measuring distances between the county in which the defendant prefers to have its case tried and the county in which plaintiff, in accordance with the provision of the Federal Employers’ Liability Act, elected to file his cause of action.