70 S.E.2d 531


33943.Court of Appeals of Georgia.

1. The court did not err in admitting the affidavits and depositions of available witnesses in determining whether to dismiss the action under the doctrine of forum non conveniens.

2. The court exercised its discretion.

3. Assuming, but not deciding, that the court had the power and right to decide in its discretion whether to grant the motion, under the facts it did not abuse its discretion in denying the motion.

Action for damages; from Fulton Superior Court — Judge Moore. October 25, 1951.

Mrs. Maude Westbrook, as administratrix of the estate of John M. Westbrook, sued the Atlantic Coast Line Railroad Company in the Superior Court of Fulton County, Georgia, to recover damages for the alleged tortious death of the deceased, for the benefit of the widow of the deceased, Mrs. Maude Westbrook.

The defendant filed a motion to dismiss the petition without prejudice under the doctrine of forum non conveniens, as follows: “Now comes the defendant, specially appearing and without submitting itself to the jurisdiction of this court, and shows that the accident referred to in the above-styled cause occurred out of the State of Georgia and in the State of Florida, at a distance

Page 24

of more than 400 miles from Atlanta, Georgia. That the plaintiff is a non-resident of Georgia, residing in Florida, and that defendant is a non-resident corporation, being incorporated under the laws of the State of Virginia, but having a place of business and officers and agents in the State of Florida, upon whom due and legal service may be had. That said petition is brought under the Federal Employers’ Liability Act and is to be tried according to said statute and not the statutes of the State of Georgia. Defendant is informed and believes that the State and Federal calendars in the State of Florida are less congested than in this Honorable Court, and that a trial can readily be had in the courts of Florida than in this Honorable Court. Had said accident happened in Georgia and suit had been brought in the State courts it would of necessity have been filed in the county where the accident occurred and where service could be had on it. Movant shows that the witnesses to said happening all reside out of the State of Georgia. Movant further shows that the Congress has in recent times recognized that the calendars of the United States District Courts were being congested and witnesses and parties were being imposed upon by the bringing of so-called imported and exported cases from remote jurisdictions, and for the convenience of parties and witnesses and in the interest of justice enacted Section 1404 (a) U.S. Code, Title 28, and the Supreme Court of the United States has since sustained the constitutionality of such section, and held that such section applied to the venue of any and all civil cases and in particular permitted the transfer of cases arising under said Employers’ Liability Act. Movant asserts that this Honorable Court has the inherent power, in the interest of convenience of the parties and witnesses and in the interest of justice, to dismiss the above case without prejudice. Movant shows that there is no legal compulsion on the courts of this State to try at the expense of the State of Georgia and its several counties and at the expense and convenience of Georgia litigants and Georgia attorneys, cases between non-residents where the causes of action arise out of the State. Movant further shows that the Supreme Court of the United States, in the case of State of Missouri ex rel. Southern Railway Company v. Waldo C. Mayfield (1950) [340 U.S. 1, 71 Sup. Ct. 1] 95 Law Ed. 6, has held that the Federal

Page 25

law does not limit the power of the State to deny access to its courts to suitors under the Federal Employers’ Liability Act if in similar cases the State for reasons of local policy denies resort to its courts, so long as it enforces its policy impartially so as not to discriminate against suits under the act and not to offend the privileges and immunities clause, and that a State court is in no way bound by any Federal law in determining the applicability of the doctrine of forum non conveniens. Movant shows that not only the litigation in Fulton County is retarded by such suits, most of which are tried on special orders, but that the appellate courts are likewise unduly burdened and the disposition of the court’s business, no matter from what county the appeal may have been prosecuted, is delayed.”

The plaintiff filed the following traverse of the motion to dismiss: “That, although said cause proceeds under the Federal Employers’ Liability Act and although plaintiff resides in Florida and all witnesses to the occurrence complained of reside out of the State of Georgia, it denies, under the statutes and laws of Georgia and under the decisions of its appellate courts with reference to transitory causes that said case should be dismissed. Plaintiff denies that Section 1404 (a) U.S. Code, Title 28, has any applicability to the present case and motion, and further denies all other facts and conclusions of law set out in said motion which are relevant to the issues raised by said motion.”

On October 25, 1951, the motion to dismiss came on for a hearing before a judge of the Fulton Superior Court. Upon the hearing the court heard argument of defendant’s counsel on the motion and defendant’s counsel read to the court a portion of an affidavit of F. M. Meggs. At the conclusion of the argument of defendant’s counsel, the court inquired of plaintiff’s counsel whether he knew of any case where a judge in this State had used his discretion in refusing to let a case be brought under similar circumstances, and it was stated that no one knew of such a case. Thereupon the court entered the following order: “This motion coming on to be heard, the same is overruled. This October 25, 1951.”

After the rendition of this judgment, counsel for the plaintiff advised the court that he did not consider the affidavit read by defendant’s counsel to be in evidence. The judge stated that he

Page 26

had considered the affidavit along with the law when making his ruling. Counsel for the plaintiff then requested that the hearing be reopened to permit him to submit evidence to complete the record. This request was granted, and the following evidence was introduced: It was stipulated that the parties to the action were non-residents of the State of Georgia, and that all of the witnesses involved were non-residents of this State; that the defendant corporation is a Virginia corporation with its principal offices in Wilmington, North Carolina; that it has 1675 miles of main-line track in Georgia, and that for the last year it had $31,000,000 in gross receipts in operating revenue in Georgia. The defendant introduced the affidavit of F. M. Meggs, its claim agent, which showed: that he had made an investigation of the accident involved in the action; that he became familiar with the train crews of the two trains; that the crew of train number 580 consisted of Conductor R. J. Wells, Engineer L. G. Whitlock, Fireman R. V. O’Steen, Flagman C. A. Hester and Brakeman K. D. Lovette; that the crew of train number 460 consisted of Conductor A. G. Knight, Fireman Sam Bryant, Flagman W. P. Jefferys and Brakeman S.E. Skipper; that of the above-named men, W. P. Jefferys is dead and only A. S. Knight and S.E. Skipper are presently employed by the defendant; that the dispatchers responsible for the movement of the two trains involved and all other employees of the defendant who have any knowledge of the circumstances surrounding the accident are residents of Florida; that the records concerning the movements of the trains, train orders, etc., are kept in Florida; that the plaintiff is a resident of High Springs, Florida; that there is no one resident of Georgia or stationed with the defendant in Georgia, and particularly in and around Atlanta, who has any knowledge of the facts concerning or the circumstances surrounding said accident; that the employment records of the deceased, J. M. Westbrook, were made and kept in Florida, and that copies of such records may be available in the General Offices of the defendant in Wilmington, North Carolina; that, to the best of his knowledge and belief, no such records are kept or are available within the State of Georgia, and that to try this case in Georgia would involve great expense and inconvenience to the defendant, in that all of the personnel employed by the defendant, including members

Page 27

of the train crews, train dispatchers, and custodians of records, must be transported to Atlanta and kept there for the duration of the trial, all of which will involve great cost and expense to the defendant. The plaintiff introduced the affidavit of Douglas Dennis, which showed that the defendant has large offices in Fulton County, also a ticket office, a general superintendent, a general agent, an assistant general freight agent, assistant traffic manager, district passenger agent, and executive general agent, and legal representation consisting of a division solicitor, division attorneys, and special counsel. The plaintiff introduced the affidavit of Evan T. Evans, which showed that he practiced law in Florida, and that Florida courts exercised jurisdiction over transitory tort actions. The plaintiff introduced a Florida statute, § 46.04 of Florida Statutes Annotated, 1943, showing that the venue where the cause of action accrued in other States against companies incorporated in other States is in a county or justice’s district where such company may have an agent or other representative. The plaintiff introduced in evidence the affidavits of Sam Bryant, L. G. Whitlock, and R. V. O’Steen, and the depositions of R. J. Wells, A. G. Knight, S.E. Skipper, C. A. Hester, and K. D. Lovette. The evidence of these witnesses tended to show liability on the part of the defendant. The defendant objected to the evidence of each, on the ground that it was immaterial, irrelevant, and went to the merits of the controversy and undertook to describe the circumstances of the accident as each witness understood it. At this point a colloquy occurred between the defendant’s counsel and the court, and the court stated: “Well, it seems this evidence is admitted at this time for the purpose of enlightening the court as to the nature of the evidence that may be introduced at the trial of the case, that the defendant may want to have available.” The court then made the following statement of what occurred on the hearing of the motion: “Now, this case came on to be heard earlier in the day, at which time Mr. Spann stated that it was agreed between the parties that this occurrence in which Mr. Westbrook lost his life happened in the State of Florida, and that all of the witnesses were residents of the State of Florida. He also read a portion of an affidavit by Mr. Meggs, that defendant is a foreign corporation and the plaintiff is a resident of Florida, and

Page 28

as I said he read a portion of an affidavit of F. M. Meggs. Mr. Spann then read some authorities to show that this court had the discretion, if it saw fit, to act upon that discretion, to dismiss this case and let it be brought in some other jurisdiction. He stated, I believe, that this court had no authority or right to say where it should be brought and that it shouldn’t be brought in this court. After he had finished his argument, I asked Mr. Dennis, did he have anything to say in the matter, and he said that he had a good deal to say provided the court wanted to hear from him. I then stated that it appeared to me that it was purely a matter of discretion on the part of the court, and asked the question, was there any case where a judge had used his discretion in refusing to let a case be brought in this State under such circumstances, and it was stated that none or nobody knew of such a case. I then stated that I would not exercise the discretion which was in me by dismissing this case, and I would overrule the motion to have it dismissed; whereupon an order was drawn which reads: “This motion coming on to be heard, the same is overruled. This October 25, 1951; which was signed by myself as judge. About 15 or 20 minutes later Mr. Spann and Mr. Dennis approached me and told me that Mr. Spann desired to take this case to the higher court, and Mr. Dennis stated that he did not understand that the affidavit had been admitted into evidence. I stated that I had considered the affidavit along with the law in making my ruling. Mr. Dennis then stated that he had some affidavits that he wanted to introduce in the hearing of the motion to complete the record. I suggested to the lawyers that they get together and see if they could not agree on just what evidence was to be admitted. After some considerable conference they came back and stated that they had agreed on practically everything, that there were a few points that ought to be ironed out, and thought that maybe they needed a reporter to get those matters straightened out; whereupon the reporter was sent for and from that time on the record speaks for itself as to what was said and done. After hearing evidence and argument, it is ordered and adjudged that the order passed by me, dated October 25th, 1951, to wit: “This motion coming on to be heard, the same is overruled’ is hereby revoked, and now pass this order and judgment in this case as follows: “The motion of

Page 29

the defendant to dismiss the petition brought by the plaintiff without prejudice, after considering the evidence and hearing the argument, it is hereby ordered and adjudged that said motion to dismiss is overruled. This 25th day of October, 1951.'”

The defendant excepted to the judgment denying the motion to dismiss, on the grounds that the judge did not exercise his discretion in overruling the motion and that, if he did exercise discretion, he abused it.

Daniel B. Hodgson, F. A. Duggan, Wm. B. Spann Jr., Alston, Foster, Sibley Miller, for plaintiff in error.

Hewlett, Dennis, Bowden Barton, contra.


1. It was not error for the court to admit the affidavits and depositions of the train crews. This evidence was in rebuttal of the defendant’s contention that a trial in Fulton County, Georgia, would be inconvenient. The evidence tended to show that the defendant would be in no better position if the case was tried in Florida insofar as the testimony of all the living witnesses of the two crews of the trains that collided is concerned.

2. Under the facts stated above, the conclusion is demanded that the judge did exercise his discretion in overruling the motion.

3. Assuming, but not deciding, that the judge had the power and authority to grant the motion to dismiss the action without prejudice on the ground contended for, under the facts of the case he did not abuse his discretion in overruling the motion. In this case the only ground of the motion supported by evidence was the alleged expense and inconvenience of obtaining witnesses. However, the affidavits and depositions of all the available witnesses were favorable to the plaintiff, and there was no evidence or intimation that any of the witnesses had made false affidavits or had given false testimony and would give different testimony at the trial. The only other evidence referred to was the service record of the deceased, which was in Florida, and there was no effort made to show just how important such evidence was.

Judgment affirmed. Sutton, C. J., concurs. Worrill, J., concurs in the judgment.

Page 30