The opinion of the court was delivered by: John E. Miller, Chief Judge.
This matter is before the court on defendant's motion to
transfer this cause of action to the United States District Court
for the District of Arizona, sitting at Phoenix, in accordance
with 28 U.S.C.A. § 1404(a).
On April 2, 1962, the plaintiff filed her complaint in the
Garland County Circuit Court. Summons was served on defendant,
J.C. Penney Co., on April 4, 1962, and the defendant's petition
for removal to this court was filed April 23, 1962.
In paragraph numbered I of the complaint the plaintiff alleged:
"On or about the 12th day of April, 1960, the
plaintiff was shopping in one of the retail
department stores of the defendant in the City of
Mesa, Arizona. As the plaintiff approached one of the
display counters of the defendant, she stepped on a
slippery cellophane wrapper together with dirt, sand
and other debris which caused her to fall violently
to the floor. As a result of this fall, caused by the
negligence of the defendant, the plaintiff has been
seriously, painfully and permanently injured."
In paragraph numbered III the plaintiff alleged:
Then followed allegations of the various personal injuries
which the plaintiff claims that she received at the time, and
that said personal injuries were proximately caused by the
negligence of the defendant.
On April 23, 1962, the date on which the petition for removal
was filed, the defendant filed its answer and denied the
allegations contained in paragraph I as above set forth, and
specifically denied that it was guilty of any negligence, or that
the plaintiff fell as alleged and that she received any personal
injuries as a result of a fall in the store of defendant located
in Mesa, Arizona, or any other place.
In the motion to transfer, the defendant alleged that on April
12, 1960, it was and is now operating a store in the City of
Mesa, Arizona; that on the date the plaintiff claims she received
the injury she was a resident of Maricopa County, Arizona, and
resided at 1757 East Second Street in the City of Mesa; that the
defendant is subject to a suit in the United States District
Court for the District of Arizona, sitting at Phoenix.
The motion by reference included the discovery depositions of
the plaintiff and her husband, Raymond Elmer Vandusen, taken on
June 13, 1962, in Hot Springs, Arkansas. Attached to the motion
are the affidavits of nine employees of the defendant, all of
whom stated under oath that they did not see the plaintiff fall;
did not personally know her; and that, in fact, no one fell in
the store on or about April 12, 1960. In other words, all nine of
the employees have sworn that no accident involving any customer
or any other person in the store was witnessed by any of them
during the month of April, 1960.
In the affidavit of Elton C. Hussey, who was on April 12, 1960,
manager of the store, and had been for eleven years, it is stated
that he was not present in the store on April 12, 1960; that he
was away from March 30, 1960, to May 1, 1960, on a trip to Japan.
Mr. Hussey further states:
"That on or about November 11, 1961, upon receipt
of a letter from plaintiff's attorney concerning the
alleged accident, he immediately questioned employees
who were employed during the month of April, 1960,
and all persons so questioned denied any knowledge of
any person by the name of Dora H. Vandusen, or any
knowledge of any customer having a fall or other
accident during the month of April, 1960;"
The plaintiff opposes the motion to transfer on the ground that
she is still suffering severe pain and discomfort "from the
effects of the injury received on defendant's business premises
in Mesa, Arizona, and to require her to journey to Mesa, Arizona,
would aggravate her suffering; that her husband, Raymond
Vandusen, who witnessed the accident herein, is employed at Radio
Station KAJI, Little Rock, Arkansas, and subject to twenty-four
(24) hour call six days a week, would have to accompany her to
care for and assist her; that if it becomes necessary for her
husband to make an extended trip to Arizona it will result in
great hardship or possibly loss of his employment; that if such
loss of employment should ensue plaintiff would lose her only
reliable means of support since she is not able to fully support
herself since the injury received on defendant's premises in
The plaintiff and her husband were both born and reared in
Arkansas and resided in the state until October 10, 1959, when
the plaintiff, accompanied by her husband, went to Mesa, Arizona,
where her husband accepted employment as chief engineer at Radio
Station KBUZ. For the first few months after they arrived at
Mesa, they lived with a brother of plaintiff but later purchased
a home. In December, 1959, the plaintiff returned to Arkansas, to
look after the home they
owned in or near the City of Hot Springs. She made some
arrangements concerning the home and paid the taxes and returned
to Mesa on March 1, 1960. The plaintiff claims that on April 12,
1960, she, accompanied by her husband, went to the store of the
defendant to purchase some sateen for quilt lining, and upon
entering the store she fell and received the injuries now
complained of. She remained in Mesa until July 17, 1960, when she
returned to Hot Springs. Her husband continued to live in Mesa,
Arizona, until October 15, 1960, when he returned to Hot Springs
and obtained employment as chief engineer at Radio Station KAJI
in Little Rock, Arkansas, in which occupation he is now engaged,
and in order to discharge the duties of such employment he is
required to live in Little Rock, where he has a room. The
plaintiff continues to live in their home on Route 2, Box 638,
Hot Springs, Arkansas.
Counsel for the parties have served and submitted briefs in
support of their respective contentions. The defendant contends
that under the admitted facts it is entitled to have the case
transferred to the District of Arizona for trial in Phoenix,
which city is located near Mesa where the injuries are alleged to
have been received.
The doctrine of forum non conveniens did not originate in
federal but in state courts. Nevertheless the federal courts,
including the Supreme Court, ...