Kennedy v. Henderson

Kennedy v. Henderson
1990 OK 56
794 P.2d 754
61 OBJ 1774
Case Number: 75468
Decided: 07/03/1990
Supreme Court of Oklahoma

 
THOMAS G. KENNEDY, JR., AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, PETITIONERS,
v.
THE HONORABLE WILLIAM H. HENDERSON, JUDGE OF THE DISTRICT
COURT OF OKLAHOMA COUNTY, RESPONDENT.

ORDER

¶1 Original jurisdiction is assumed. Respondent, William H. Henderson, Judge of the District Court of Oklahoma County, or any other assigned judge, is prohibited from proceeding further in Deloris Poole v. Thomas G. Kennedy, Jr., and State Farm Mutual Automobile Insurance Company, filed in the District Court of Oklahoma County, except for the sole purpose of transferring said cause to the District Court of Blaine County. The doctrine of intra-state forum non-conveniens should be applied to this case. Schwartz v. Diehl, 568 P.2d 280, 283 (Okla. 1977); Harwood v. Woodson, 565 P.2d 1, 3 (Okla. 1977); and Safeway Stores, Inc. v. Martin, 530 P.2d 131 (Okla. 1974).

/s/ Ralph B. Hodges
Acting Chief Justice

¶2 HODGES, LAVENDER, SIMMS, DOOLIN and SUMMERS, JJ., concur.

¶3 HARGRAVE, C.J., OPALA, V.C.J., and ALMA WILSON and KAUGER, JJ., dissent.

OPALA, V.C.J., with whom ALMA WILSON and KAUGER, JJ., join, dissenting.

¶1 The court applies today Oklahoma's common-law doctrine of intrastate forum non conveniens to command that venue of this district court case be moved from Oklahoma to Blaine County. I must recede from its order. I would leave the plaintiff's choice of venue undisturbed and declare the invoked doctrine of our unwritten law

I.

PLAINTIFF'S CLAIM TO HIS CHOSEN VENUE IS EXPLICITLY ESTABLISHED BY STATUTE AND MUST BE LEFT UNDISTURBED UNLESS THE PLAINTIFF'S CHOICE IS FOUND TO BE FRAUGHT WITH SOME CONSTITUTIONAL INFIRMITY

¶2 Legislative law in force since 1975 expressly commands the courts to treat venue provisions as cumulative. 12 O.S. 1981 § 143 .

¶3 All extant court opinions that ascribe primacy to intrastate forum non conveniens jurisprudence over any discordant statutory provision or elevate judicial power over the plaintiff's choice of venue to a supra-statutory dimension must now be overruled. That body of Oklahoma's unwritten law clearly rests on a flawed foundation. It ignores the hierarchical superiority of statutory provisions over any contrary judge-fashioned legal norm and overlooks the force of the 1975 enactment of § 143.

¶4 Case law must always bow to the legislature's declared will that does not contravene the fundamental law of the State.

II.

THE DOCTRINE OF INTRASTATE FORUM NON CONVENIENS STANDS ABROGATED BY 12 O.S. 1981 §§ 140 ,

¶5 The plaintiff's choice of venue should remain undisturbed for an additional reason. When the doctrine of intrastate forum non conveniens was first woven into the fabric of Oklahoma case law, a subpoenaed witness could be compelled to testify at trial only in the county of his residence, an adjoining county, or the county in which he was served.

¶6 The recent enactment of 12 O.S.Supp. 1985 § 2004.1 (E) vastly expanded the power to compel witness attendance at trial.

III.

SUMMARY

¶7 The Legislature's abrogation of the common-law doctrine of intrastate forum non conveniens is plain from 1) the terms of 12 O.S. 1981 §§ 140 , 141 and 143 , which sections, when read together, make the plaintiff's choice of statutorily available venue impervious to judicial tinkering, absent some constitutional infirmity, and 2) the provisions of 12 O.S.Supp. 1985 § 2004.1 (E), which enable litigants to seek compulsory attendance of witnesses from anywhere within the state. Statutorily available venue, once laid by the plaintiff, [794 P.2d 757] must be deemed conclusively binding upon the courts, except only when that choice be found to impair or deny an adversary's right to the minimum standards of fairness embodied in the Due Process Clause.

¶8 I would assume original cognizance of this case and deny the writ by an opinion declaring the common-law doctrine of intrastate forum non conveniens abrogated by the 1975 enactment of 12 O.S. 1981 § 143 , read together with 12 O.S. 1981 §§ 140 and 141, and by 12 O.S.Supp. 1985 § 2004.1 (E). The doctrine should now be relegated to antiquarian lore as an extinct dodo bird.

Footnotes:

1 "Unwritten law," or lex non scripta, is a synonym for the common law. McCormack v. Oklahoma Pub. Co., Okl., 613 P.2d 737, 740 [1980].

2 The terms of § 143, which became effective May 6, 1975, provide:

"All venue statutes are cumulative wherever they appear and any action brought under any such statute may be maintained where brought. No court shall apply one venue statute in preference to another whether considered general or special." [Emphasis added.]

See Schwartz v. Diehl, Okl., 568 P.2d 280, 283 [1977].

The term "cumulative" denotes additional remedial provisions which are supplemental and not mutually exclusive. A cumulative provision is (a) one added to others that still remain in force, (b) one that has no negative effect, and (c) one that does not vitiate any pre-existing rights. See In re Radio-Keith-Orpheum Corporation, 91 F.2d 938, 941 [2nd Cir. 1937]; People v. Santa Fe Federal Savings & Loan Ass'n., 28 Cal. 2d 675, 171 P.2d 713, 717 [1946]; and State v. Barboglio, 63 Utah 432, 226 P. 904, 907 [1924].

3 The pertinent terms of 12 O.S. 1981 § 141 provide:

"The venue of civil actions for damages resulting from the use or operation of motor vehicles, or resulting from the operation of boats or other watercraft in the waters of this state, wherein the defendant or defendants resided in the State of Oklahoma at the time of injury, shall be, at the option of the plaintiff or plaintiffs, in either of the following:

1. In any county of Oklahoma where service of summons can be obtained upon one or more of the defendants as now provided by law.

2. In any county where the damages or a part thereof were sustained. * * *" [Emphasis added.]

4 See Consolidated Flour Mills Co. of Kansas v. Sayre Wholesale G. Co., 176 Okl. 482, 56 P.2d 781, 783 [1936].

5 The pertinent terms of Art. 7, § 4 , Okl. Const., provide:

"The appellate jurisdiction of the Supreme Court shall be coextensive with the State and shall extend to all cases at law and in equity. . . . The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all Agencies, Commissions and Boards created by law."

6 Chapman v. Parr, Okl., 521 P.2d 799, 803-804 [1974], where this court pronounced:

"This Court should not extend the venue statutes beyond those limitations intended by the legislature, nor, should this Court effectively overrule legislative intent . . . by judicial fiat. Nor, should this Court deprive the plaintiff her legislatively granted right to bring and maintain the . . . action. . . ." [Emphasis added.]

7 12 O.S. 1981 § 2 . Its pertinent terms provide:

"The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma. . . ." [Emphasis added.]

8 The pertinent provisions of 12 O.S. 1981 § 140 are quoted in Part II.

9 See supra note 3.

10 For the text of 12 O.S. 1981 § 143 see supra note 2.

11 The pertinent terms of 12 O.S.Supp. 1985 § 2004.1 (E) provide:

"At the request of any party subpoenas for attendance at a hearing or trial shall be issued by the clerk of the district court for the county in which the hearing or trial is held. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within this state." [Emphasis added.]

12 See 12 O.S. 1981 § 390 , repealed November 1, 1984. Okl.Sess.Laws 1984, Ch. 164, § 32, p. 628. Its pertinent terms provided:

"A witness shall not be obliged to attend for examination on the trial of a civil action or to attend to give his deposition except in the county of his residence or a county adjoining the county of his residence, or where he may be when the subpoena is served upon him . . . ." [Emphasis added.]

13 See Harwood v. Woodson, Okl., 565 P.2d 1, 3 [1977]; Gulf Oil Company v. Woodson, Okl., 505 P.2d 484, 488 [1972]; St. Louis-San Francisco Railway Co. v. District Court, Okl., 512 P.2d 170, 171 [1973]; and Simpson v. Woodson, Okl., 508 P.2d 1069, 1071 [1973].

14 See supra note 11 for the terms of 12 O.S.Supp. 1985 § 2004.1 (E).

15 Chapman v. Parr, supra note 6.

16 The maxim cessante ratione legis, cessat ipsa lex means that a rule of common law becomes inefficacious when the reason for its application has ceased to exist. See Cleve v. Craven Chemical Co., 18 F.2d 711, 714 [4th Cir. 1927].