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NEVIN SHEWBROOKS, ET UX. v. A. C. AND S.

MAY 11, 1988

NEVIN SHEWBROOKS, ET UX.
v.
A. C. AND S., INC., ET AL.



ON PETITION FOR REHEARING

EN BANC.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

The Petition for Rehearing is granted and the following substituted for the opinion of the Court.

 Nevin and Anna Mae Shewbrooks have appealed from a judgment of the circuit court dismissing their action against A. C. and S., Inc., and numerous other corporate co-defendants because of lack of personal jurisdiction over the defendants and forum non conveniens. Finding the circuit court in error, we reverse and remand for trial upon the merits.

 FACTS

 Nevin and Anna Mae Shewbrooks, Delaware residents, filed suit in the circuit court of the 1st Judicial District of Hinds County against 18 corporate defendants, none of which had its principal office or was domiciled in Mississippi. The suit was for asbestos poisoning received by Shewbrooks in Delaware, New Jersey and Pennsylvania as a result of mining, manufacturing and distribution of asbestos by the various defendants. The defendants are engaged in business in this state and are subject to process in this state. *fn1

 The complaint charges the defendants with knowingly mining, manufacturing and marketing asbestos years after discovery of its dangers, and concealing its hazards from their employees and the public. It also charges a conspiracy between them to conceal such dangers.

 The circuit court sustained motions to dismiss on two grounds: lack of personal jurisdiction over the defendants and forum non conveniens. The circuit court clearly erred in dismissing for lack of jurisdiction.

 LAW

 There is no serious contention on appeal that the circuit court lacked personal jurisdiction of the defendants, all of which do business in Mississippi and are subject to process in this state. This ground of dismissal needs little discussion.

 The fact that a plaintiff and a defendant are nonresidents of a state in a transitory cause of action which accrued in another state does not, in and of itself, deprive a court of lawful authority (i.e., "jurisdiction") to hear the case, and this is universally recognized by all courts.

 This familiar principle of law was settled in this state long ago in Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 So. 53 (1897). In that case the plaintiff lived in Illinois, the defendant corporation was domiciled in

 Illinois, and the assault on the plaintiff by an employee of the defendant occurred in Illinois. Suit, however, was brought in the circuit court of Claiborne County. We then held that there was:

 [I]n our own state, no ground left for dispute that in transitory actions, whether in tort or on contract, our courts were wide open to any suitor, resident or nonresident, against his adversary, whether resident or nonresident, whether a natural person or an artificial one, regardless of where the right of action occurred, if only the courts had jurisdiction of the subject-matter, and could obtain jurisdiction of the party, either by a voluntary appearance, or by service of process. [Emphasis added]

 Id. 74 Miss. at 796, 22 So. at 55. See: Read v. Sonat Offshore Drilling, Inc., 515 So.2d 1229 (Miss. 1987); Slater v. Mexican Nat'l R.R. Co., 194 U.S. 120, 48 L.Ed. 900, 24 S. Ct. 581 (1904); 30 A.L.R. 255. We turn then to the other ground for dismissal.

 I.

 WHAT COURTS ARE ALL ABOUT

 Courts of this nation are the passive branch of government. We have no lawful authority to decide any issue or pronounce any law not required from the facts squarely presented in an actual case before us. The converse of this is also true. When we have a case before us which we have the lawful authority to decide, we have no authority not to decide it. We can neither ask for nor invite lawsuits, but at the same time - and just as important - we cannot refuse to hear a case, either. That is, we cannot refuse in conformity with our solemn responsibility as a court.

 In Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed. 257, 291 (1821), the United States Supreme Court speaking through Chief Justice Marshall, stated:

 It is most true, that this court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction, if it should. The judiciary cannot, as the legislature may, avoid a measure, because it approaches the confines of the constitution. We cannot pass it by, because it is doubtful. With whatever doubt, with whatever difficulties a case may be attended, we must decide

 it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur, which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously perform our duty. . . . We find no exception to this grant, and we cannot insert one. [Emphasis added]

 That Court in Knox County v. Aspinwall, 65 U.S. (24 How.) 376, 16 L.Ed. 735 (1861), stated:

 [B]ut no court, having proper jurisdiction and process to compel the satisfaction of its own judgments, can be justified in turning its suitors over to another tribunal to obtain justice.

 65 U.S. at 385.

 In Willcox v. Consolidated Gas Co., 212 U.S. 19, 40, 53 L.Ed. 382, 394, 29 S. Ct. 192, 48 LRA NS 1134 (1909), that Court stated: "When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction." 212 U.S. at 394-395.

 This holding was repeated by the United State Supreme Court in England v. Louisiana Medical Examiners, 375 U.S. 411, 415, 84 S. Ct. 461, 11 L.Ed.2d 440, 445 (1964).

 In State v. Killigrew, 174 N.E. 808 (Ind. 1931), the Indiana Supreme Court held:

 [W]hen a court has jurisdiction over a class of cases and one seeking relief invokes the jurisdiction of the court in the manner prescribed by law, the particular cause is, ipso facto, under the jurisdiction of the court and the court cannot refuse jurisdiction.

 Id. at 809.

 The Indiana Supreme Court again in Rosenbarger v. Marion Circuit Court, 155 N.E.2d 125 (Ind. 1959), held:

 [T]he power to hear and decide carries with it the duty to do so. Mandate will lie to require an inferior court to hear the merits of a cause where it was improperly dismissed.

 Id. at 127.

 In Kruidenier v. McCulloch, 136 N.W.2d 546 (Iowa 1965), the Iowa Supreme Court held:

 [S]tate courts of original jurisdiction have the duty to hear and determine cases properly before them. Such courts may not deny relief to persons properly before them to the extent to which they are entitled and the courts have power to afford under the circumstances.

 Id. at 547.

 In Lansverk v. Studebaker-Packard Corp., 338 P.2d 747 (Wash. 1959), the Washington Supreme Court held:

 [W]e find nothing in our constitution, our statutes, our rules, or our decisions that recognizes the existence of any discretion in the superior court of any county to decline to exercise the jurisdiction with which it is vested by the constitution and our statutes because of forum non conveniens.

 Id. at 748. See also: Vickers v. Kansas City, 216 Kan. 84, 53 P.2d 113, 121 (1975); Buckman v. United Mine Workers of America, 339 P.2d 398, 400 (Wyo. 1959).

 Neither can state courts make a distinction in access to its courts between in- and out-of-state citizens. Article 4, 2, Paragraph 1 of the United States Constitution provides: "The Citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several States." In Chambers v. Baltimore & O. R. Co., 207 U.S. 142, 28 S. Ct. 34, 52 L.Ed. 143 (1907), the United States Supreme Court held:

 [D]ifferent states may have different policies, and the same state may have different policies at different times. But any policy the state may choose to adopt must operate in the same way on its own citizens and those of other states. The privileges which it affords to one class it must afford to the other. Any law by which privileges to begin actions in the court are given to its own citizens and withheld from the citizens of other states is void, because it is in conflict with the supreme law of the land.

 207 U.S. at 149.

 Likewise, a court of this state may not decline jurisdiction because it is based on the law of another state. See: First Nat'l Bank v. United Airlines, Inc., 342 U.S. 396, 72 S. Ct. 421, 96 L.Ed. 441 (1952); Hughes v. Fetter, 341 U.S. 609, 71 S. Ct. 980, 95 L.Ed. 1212 (1951).

 II.

 FORUM NON CONVENIENS

 There is one important qualification to this principle, and that is the doctrine of forum non conveniens. As stated in 20 Am. Jur. 2d, Courts, 172:

 [T]he doctrine of forum non conveniens is a most important qualification of the general theory that a court which has jurisdiction of a case has not only the right, but also the duty to exercise it,

 Section 84 of the Restatement (Second) of Conflict of Laws (1971), embraces this proposition:

 84. Forum Non Conveniens

 A state will not exercise jurisdiction if it is a seriously inconvenient forum for the trial of the action provided that a more appropriate forum is available to the plaintiff.

 * * * * *

 (a) Rationale . . . The rule has been developed that a court, even though it has jurisdiction, will not entertain the suit if it believes itself to be a seriously inconvenient forum provided that a more appropriate forum is available to the plaintiff.

 Of key importance is a recognition of a clear-cut type of case in which this doctrine has never been applied. In a suit between United States citizens, no court has ever applied the doctrine of forum non conveniens to dismiss a case when there was no other forum available to the plaintiff.

 As was stated by the Supreme Court of Tennessee in Zurick v. Inman, 221 Tenn. 393, 426 S.W.2d 767, 771 (1968):

 The doctrine of forum non conveniens presupposes the court has jurisdiction of both the parties and the subject matter. The doctrine also presupposes there is at least one forum other than the forum chosen where the plaintiff may bring his cause of action, and it is necessary the trial court determine such other forum is available.

 In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07, 67 S. Ct. 839, 91 L.Ed. 1055 (1947), the United States Supreme Court stated:

 In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them.

 See also: Koster v. Lumbermen's Mutual Casualty Co., 330 U.S. 518, 67 S. Ct. 828, 91 L.Ed. 1067 (1947); Menendez-Rodriquez v. Pan American Life Ins. Co., 311 F.2d 429, 432 (5th Cir. 1962); Bewers v. American Homes Products Corp., 459 N.Y.S.2d 666, 670 (1982); MacLeod v. MacLeod, 383 A.2d 39, 42 (Me. 1978); Holmes v. Cyntex Laboratories, Inc., 202 Cal.Rptr. 773, 780 (Cal. Dist. Ct. App. 1984).

 And, there is one classic instance when the doctrine of forum non conveniens will never be applied, and that is to dismiss a case if it is barred elsewhere by a statute of limitations, unless or until the defendant is willing to stipulate that he will waive the statute of limitation defense.

 Thus, in the comment under 84 of the Restatement, supra, we find the following:

 c. Factors to be considered. The two most important factors look to the court's retention of the case. They are (1) that since it is for the plaintiff to choose the place of suit, his choice of a forum should not be disturbed except for weighty reasons, and (2) that the action will not be dismissed unless a suitable alternative forum is available to the plaintiff. Because of the second factor, the suit will be entertained, no matter how inappropriate the forum may be, if the defendant cannot be subjected to jurisdiction in other

 states. The same will be true if the plaintiff's cause of action would elsewhere be barred by the statute of limitations, unless the court is willing to accept the defendant's stipulation that he will not raise this defense in the second state.

 To insure an alternative forum is available, the overwhelming authority in this country requires a defendant to waive the statute of limitations before the court will grant a forum non conveniens transfer. See:

 California

 Holmes v. Cyntex Laboratories, 202 Cal. Rptr. 773, 780 (Cal. Dist. Ct. App. 1984).

 Colorado

 Kelce v. Touche Ross Co., 549 P.2d 415, 418 (Colo. Ct. App. 1976).

 Connecticut

 Miller v. United Technologies Corp., 515 A.2d 390, 393 (Conn. Super. Ct. 1986).

 District of Columbia

 Mills v. Aetna Fir Underwriters Ins. Co., 511 A.2d, 13-14, ...


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