For reversal -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling and Jacobs. For affirmance -- Justices Heher and Brennan. The opinion of the court was delivered by Jacobs, J.
The defendant moved to dismiss the plaintiffs' action under the doctrine of forum non conveniens. The Law Division denied the motion and the Appellate Division granted leave to appeal under R.R. 2:2-3(b). We certified upon our own motion.
The defendant United States Steel Corporation is incorporated in New Jersey but does business throughout the country. One of its branches, known as the Tennessee Coal & Iron Division, operates the Fairfield Tin Mill at Fairfield, Alabama. On August 10, 1952 the decedent Hubert Gore was at the tin mill as an employee of Nick & Hendon, independent painting contractors engaged in doing work at the defendant's premises in Alabama, and allegedly suffered injuries which resulted in his death. On June 27, 1953 the plaintiffs, being the decedent's dependents, widow and children resident in Alabama, filed their complaint in the New Jersey Superior Court, Law Division, Hudson County, alleging that (1) the decedent and his employer were covered by the Workmen's Compensation Act of Alabama; (2) the decedent was an invitee and the defendant was under a duty of furnishing him with a reasonably safe place to work; (3) the defendant negligently allowed on the premises an uninsulated wire which burned and shocked the decedent and caused his death; and claiming damages in the sum of $100,000 in their action for wrongful death under "a statute of the State of Alabama permitting such action, being Title 7, Section 123, The Code of Alabama." An amendment to the complaint set forth that their action for wrongful death was brought under the aforementioned statute "as modified by Title 26, Section 312 of said Code, which transfers said cause of action for wrongful death under said Homicide Act from the personal representative of the deceased to the actual dependents of said deceased."
In due time the defendant filed its motion to dismiss setting forth that (1) the plaintiffs are residents of Alabama; (2) the defendant is subject to process in Alabama; (3) the accident out of which the cause of action arose occurred in [15 NJ Page 304] Alabama; (4) the liability alleged and the remedy sought are based upon an interpretation of the laws of Alabama; (5) all of the witnesses are residents of Alabama and while subject to subpoena in Alabama are not answerable to process in New Jersey; (6) the expense to the parties and the witnesses' inconvenience and loss of time will be burdensome and substantially heavier if the case is tried in New Jersey rather than in Alabama, and (7) the action is one in which the doctrine of forum non conveniens should be applied. The affidavits supporting the motion set forth that the distance from Fairfield, Alabama, to Jersey City, New Jersey, is approximately 980 miles; the defendant's witnesses will include supervisory and other employees who work at its Alabama plant; the accident occurred at Fairfield, Alabama, and all of the witnesses including those not in the defendant's employ live in and about Fairfield and are subject to subpoena in Alabama but not in New Jersey; Alabama juries in tort cases are "at times allowed and at times required to view the site of an accident"; the case involves an interpretation "of certain Alabama statutes and law which are constantly being considered" by Alabama courts; the statute of limitations has not run against an action in Alabama by the personal representative of the deceased; and the case if instituted in Alabama would probably be reached for trial within six months. The affidavit in opposition to the motion was executed by an Alabama attorney for the plaintiffs. He asserted that the average verdict in the "State and Federal Courts for death actions in Jefferson County Alabama would not exceed $10,000" and that he knew "of no verdict in the State of Alabama in excess of $10,000 for any colored decedent"; apparently the decedent in the instant matter was colored. He stated further that "it is recognized generally among attorneys at the Bar in Alabama that juries generally are much more conservative in awards for colored claimants than white claimants, and this prevails particularly in death actions." He expressed the view that the plaintiffs' action was under the Workmen's Compensation Law of Alabama and not under the Alabama Homicide Act and
that the one-year period of limitation in the Compensation Law was applicable.
On October 28, 1953 the Law Division denied the motion to dismiss but directed the plaintiffs to file an amended complaint "making more definite and certain" the Alabama statute or statutes upon which they grounded their right to relief. On November 25, 1953 an order granting leave to appeal was entered by the Appellate Division; this order contained a provision to the effect that the defendant had agreed that if the New Jersey action is dismissed and an Alabama action is instituted within three months thereafter it will not raise any applicable one-year statute of limitations as a defense. Before this court, the defendant's position has been that the wrongful death action may still properly be instituted in Alabama within two years of August 10, 1952; in any event, it has renewed its waiver of the limitation defense as embodied in the Appellate Division's order. In support of the determination below the plaintiffs urge: (1) that they have an absolute right, guaranteed by the privileges and immunities clauses of the Federal Constitution, to maintain their action in New Jersey, and (2) that the trial judge properly exercised his discretion in refusing to dismiss the proceedings on the ground that Alabama would be a more convenient forum.
Under the doctrine of forum non conveniens a court may decline jurisdiction where there is available another forum where trial will best serve the convenience of the parties and the ends of justice. Koster v. (American) Lumbermens Mutual Cas. Co., 330 U.S. 518, 527, 67 S. Ct. 828, 91 L. Ed. 1067, 1076 (1947); Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S. Ct. 839, 91 L. Ed. 1055, 1062 (1947). Its origins are somewhat obscure although the term itself appeared early in Scottish practice where the courts declined to hear cases when justice dictated that the parties avail themselves of other forums. See Barrett, The Doctrine of Forum Non Conveniens, 35 Calif. L. Rev. 380, 386 (1947); Braucher, The Inconvenient Federal Forum, 60 Harv. L. Rev. 908, 909 (1947). In 1929 Paxton Blair collected many
decisions indicating that it had in one form or other been applied in many American courts. See Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Col. L. Rev. 1 (1929). And in 1941 Justice Frankfurter referred to it as a familiar doctrine under which a court having jurisdiction may decline to entertain an action "that in justice should be tried elsewhere," and as a firmly imbedded manifestation of a "civilized judicial system." See Baltimore & Ohio R. Co. v. Kepner, 314 U.S. 44, 55, 62 S. Ct. 6, 11, 86 L. Ed. 28, 34 (1941).
In the recent Gilbert and Koster cases, supra, the United States Supreme Court had occasion to apply the doctrine and express the major considerations underlying its exercise. In the Gilbert case a Virginia resident sued a Pennsylvania corporation in the United States District Court for the Southern District of New York for loss resulting from the defendant's negligence in delivering gasoline to his warehouse tanks and pumps in Virginia. 62 F. Supp. 291. The District Court dismissed under the doctrine of forum non conveniens and its action was sustained by the Supreme Court. In the course of his persuasive opinion for the Supreme Court Justice Jackson said [330 U.S. 501, 67 S. Ct. 843]:
"Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, 'vex,' 'harass,' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.
Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, ...