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Bell v. Louisville & Nashville R.r.

OPINION FILED APRIL 19, 1985.

JOHN A. BELL, APPELLEE,

v.

LOUISVILLE & NASHVILLE RAILROAD COMPANY, APPELLANT. — WILLIAM THORNTON, APPELLEE,

v.

LOUISVILLE & NASHVILLE RAILROAD COMPANY, APPELLANT.



Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of St. Clair County, the Hon. C. Glenn Stevens, Judge, presiding.

CHIEF JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 22, 1985.

We have consolidated two cases for review, Bell v. Louisville & Nashville Railroad Company, No. 60607 (Bell), and Thornton v. Louisville & Nashville Railroad Company, No. 60608 (Thornton). Both cases are before this court on interlocutory appeals from the circuit court of St. Clair County. We will first set forth the facts of each case. Then, we will discuss the issue presented by these cases.

We begin by setting forth the facts of Bell. John Bell filed two complaints against the Louisville & Nashville Railroad Company (railroad) under the Federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq. (1982)) in the circuit court of St. Clair County. The first complaint was filed February 17, 1981; it sought compensatory damages for injuries the plaintiff allegedly sustained on September 20, 1979, while attempting to repair a railroad car in the railroad's Louisville, Kentucky, car shop. (The plaintiff filed a motion to change the date of the alleged occurrence from September 20, 1979, to August 23, 1979; this motion was allowed.) The plaintiff filed his second complaint on July 6, 1981. This complaint sought compensatory damages for injuries Bell allegedly sustained on August 18, 1980, while again attempting to repair a railroad car in the railroad's Louisville, Kentucky, car shop. The circuit court consolidated the two complaints on April 11, 1983.

After the complaints were filed, the parties proceeded with discovery and pretrial motions. It was not until May 11, 1984, that the railroad filed a motion asking the circuit court to decline jurisdiction of the cases and to dismiss the cases on the grounds of forum non conveniens. In its motion the railroad alleged that: (1) the plaintiff was a resident of Louisville, Kentucky; (2) the alleged injury was sustained in Louisville, Kentucky; (3) Louisville, Kentucky, is approximately 275 miles from Belleville, Illinois, the site of the St. Clair County courthouse; (4) although the railroad at the time the alleged injury occurred was a Kentucky corporation with its principal place of business in Louisville, Kentucky, it had since merged with Seaboard System Railroad, Inc., a Virginia Corporation headquartered in Jacksonville, Florida; (5) the testimony of employee and non-employee witnesses would be required and that these witnesses were residents of Kentucky; (6) since the non-employee witnesses were Kentucky residents they could not be compelled to appear in Illinois; (7) the railroad would incur large expenses if the case proceeded to trial in Illinois; (8) the plaintiff's only connection with St. Clair County was that one of his attorneys was licensed to practice law in Illinois; (9) the absence of employee witnesses for unknown periods of time would disrupt the operation of the railroad; and (10) there was a large backlog of cases in St. Clair County.

The plaintiff filed a memorandum in opposition to the railroad's motion. On May 30, 1984, the circuit court denied the railroad's motion. The railroad filed a timely petition for leave to appeal with the appellate court under our Rule 306(a)(1)(ii) (87 Ill.2d R. 306(a)(1)(ii)). On July 27, 1984, the appellate court filed an order denying the railroad's petition. (Bell v. Louisville & Nashville R.R. Co. (5th Dist. 1984), No. 5-84-0364.) The railroad then petitioned this court for leave to appeal, and we granted its petition.

We now turn to the facts in Thornton. On August 5, 1981, William Thornton filed a complaint against the railroad under the FELA (45 U.S.C. § 51 et seq. (1982)) in the circuit court of St. Clair County. The complaint sought compensatory damages for injuries he allegedly sustained on August 22, 1980, when he fell down in the washroom of the railroad's yard office in Sharonville, Ohio. The complaint alleged that there was a faulty exhaust system in the motor vehicle which the railroad used to transport the plaintiff to Ohio and that this faulty exhaust system led to his injuries.

After the complaint was filed, the parties proceeded with discovery and pretrial motions. About 32 months later, on April 3, 1984, the railroad filed a motion asking the circuit court to decline jurisdiction of the case and to dismiss it on the grounds of forum non conveniens. In its motion, the railroad alleged that: (1) the plaintiff was a resident of Independence, Kentucky; (2) the alleged injury occurred in Sharonville, Ohio; (3) Sharonville, Ohio, is approximately 330 miles from Belleville, Illinois, the site of the St. Clair County courthouse; (4) the railroad was a Kentucky corporation with its principal place of business in Louisville, Kentucky (The railroad did not refer to the merger with Seaboard System Railroad, Inc., as it did in the Bell motion); (5) the testimony of employee and non-employee witnesses would be required and that these witnesses were residents of Ohio; (6) since the non-employee witnesses were Ohio residents they could not be compelled to appear as witnesses in Illinois; (7) the railroad would incur large expenses if the case proceeded to trial in Illinois; (8) the plaintiff's only connection with St. Clair County was that one of his attorneys was licensed to practice law in Illinois; (9) the absence of employee witnesses for unknown periods of time would disrupt the operation of the railroad; and (10) there was a large backlog of cases in St. Clair County.

The plaintiff filed a memorandum in opposition to the railroad's motion. On April 23, 1984, the circuit court denied the railroad's motion. The railroad filed a timely petition for leave to appeal with the appellate court under our Rule 306 (a)(1)(ii) (87 Ill.2d R. 306(a)(1)(ii)). On July 27, 1984, the appellate court filed an order denying the railroad's petition. (Thornton v. Louisville & Nashville R.R. Co. (5th Dist. 1984), No. 5-84-0363.) The railroad petitioned this court for leave to appeal, and we granted the petition. We then consolidated this case with Bell.

The issue presented by these two cases is whether a defendant's delay in asking the circuit court to decline jurisdiction and to dismiss a case on the grounds of forum non conveniens results in a waiver of the defendant's right to object to the plaintiff's choice of forum.

We note initially that the circuit court denied the defendant's motions on the basis of the parties' "written briefs and oral arguments." However, the defendant's motions and the plaintiffs' objections did not address the issue which is now before this court. Furthermore, the transcripts of the oral arguments on these motions were not made available to us. During oral argument before this court, defendant's counsel asserted that the circuit court's orders in these cases discussed waiver and the defendant's delay in filing its motions. Despite the assertions of defendant's counsel, we did not find any mention of waiver or delay with regard to the filing of the forum non conveniens motions in the circuit court's orders. The record before us indicates that the issue of waiver was not raised in the circuit court.

This court has often set forth the general rule that an issue not raised in the circuit court cannot be raised for the first time on appeal. (People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill.2d 303, 313.) However, the general rule is not unyielding (61 Ill.2d 303, 313), since this court has also stated that it will consider an issue not raised in the circuit court if the record contains all the factual material that is necessary to decide the issue. 61 Ill.2d 303, 313; Kravis v. Smith Marine, Inc. (1975), 60 Ill.2d 141, 147.

The issue in the present appeal concerns the defendant's lengthy delay in filing its forum non conveniens motions. Since this information is in the record, the facts necessary to decide the issue are before us. Therefore, we need not reach a conclusion as to whether the issue was raised in the circuit court. Additionally, ...


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