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Weaver v. Midwest Towing





Appeal from the Circuit Court of Madison County; the Hon. Horace L. Calvo, Judge, presiding.


This personal injury action was commenced in the circuit court of Madison County, Illinois, by complaint filed August 17, 1984. Defendant Midwest Towing, Inc., moved that the cause be transferred or dismissed for want of proper venue or on grounds of forum non conveniens. The circuit court denied the motion. Defendant petitioned this court for leave to appeal from that ruling. This court granted the petition. We affirm the denial of defendant's motion.

Plaintiff's complaint alleged in pertinent part that defendant operates various motor vessels and barges on inland waterways "including Illinois and Madison County," and that on or about November 26, 1981, while employed by defendant as a deckhand, plaintiff was exposed to leaking benzene gas, resulting in plaintiff's injury. Defendant filed its motion to dismiss or transfer for want of venue or on grounds of forum non conveniens, alleging that the event in question did not occur in Madison County, that neither party was a resident of Madison County, that no residents of Madison County were expected to testify in the case, and that defendant does not transact business within Madison County. Accompanying defendant's motion was the affidavit of Eugene Fowler, described as "Personnel Mgr., Vessels, of Cargo Carriers, Inc., the parent company of" defendant. Plaintiff filed a written response to defendant's motion, supported by plaintiff's affidavit.

• 1 Defendant's brief on appeal attacks the venue portion of the ruling upon a variety of grounds. Plaintiff has responded only to defendant's argument that defendant is not "doing business" in Madison County within the meaning of section 2-102(a) of the Civil Practice Law (Ill. Rev. Stat. 1983, ch. 110, par. 2-102(a)). To be "doing business" within a given venue, a defendant must be conducting its usual and customary business within the county; the defendant's activity must be of such a nature as to localize the business and make it an operation within the county. Stambaugh v. International Harvester Co. (1984), 102 Ill.2d 250, 258, 464 N.E.2d 1011, 1014.

• 2 Since defendant was the movant in the circuit court, defendant had the burden of demonstrating its entitlement to the ruling requested. (See 77 Am.Jur.2d Venue sec. 79 (1975).) Defendant relies on the statement in the Fowler affidavit that "Cargo Carriers does not transact business in Madison County, Illinois, other than occasionally purchasing fuel and other supplies from suppliers located in that County, and some occasional fleet work and barge moving for Con Agra, which has an office in Madison County, Illinois." Although this statement is not contradicted in the record, we find it insufficient to establish that defendant is not "doing business" in Madison County for venue purposes. Whether defendant's business in Madison County was "occasional" was not for the affiant to decide; it was for the circuit court to decide based on facts stated by the affiant. A useful test of an averment in an affidavit is whether the affiant may be charged with perjury if the averment is false. If not, the averment is a conclusion of the affiant, not a proper statement of fact. (See People ex rel. Raster v. Healy (1907), 230 Ill. 280, 297, 82 N.E. 599, 605; 3 Am.Jur.2d Affidavits sec. 20 (1962).) Opinions may differ as to how much business is "occasional." Consequently, we must conclude that the Fowler affidavit provides no facts regarding the extent of defendant's business in Madison County beyond admitting that some business is done there. This contrasts with cases in which defendants provided the court with sufficient hard facts to justify ruling in defendant's favor on the venue issue. (See, e.g., Stambaugh v. International Harvester Co. (1984), 102 Ill.2d 250, 464 N.E.2d 1011; Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill.2d 321, 368 N.E.2d 88.) Defendant has not shown facts to justify reversing the circuit court's conclusion that venue was proper in Madison County in the case at bar.

• 3 In contrast to the conclusional statements in the Fowler affidavit, plaintiff's affidavit states sufficient facts to show that part of the "transaction" (Ill. Rev. Stat. 1983, ch. 110, par. 2-101) in which plaintiff was injured occurred in Madison County. According to plaintiff's affidavit, "the incident complained of results [sic] in continuous exposure from the upper Mississippi to and including passage through the Alton Lock and Dam." This was a sufficient statement of fact. Plaintiff could be charged with perjury on the basis of his affidavit if it were established at trial that the alleged benzene gas leak was discovered and repaired before the vessel reached the Alton Lock and Dam. Accordingly, though plaintiff does not so argue on appeal, the circuit court could have found that venue was proper in Madison County on the ground that a part of the "transaction" occurred there. Ill. Rev. Stat. 1983, ch. 110, par. 2-101; see Wier v. Ketterer (1985), 133 Ill. App.3d 751, 752, 479 N.E.2d 416, 417.

• 4 Defendant also contends that the circuit court erred in refusing to transfer the cause on grounds of forum non conveniens. We disagree.

The doctrine of forum non conveniens requires us to look beyond the criteria in venue cases to determine the relative convenience of each of the competing forums. (Foster v. Chicago & North Western Transportation Co. (1984), 102 Ill.2d 378, 384-85, 466 N.E.2d 198, 201.) In other words, it is not sufficient that a defendant state reasons why a plaintiff's choice of forum is inconvenient if the defendant cannot point to a forum that is less inconvenient in light of the appropriate criteria. Criteria to be considered in comparing the forums which have jurisdiction include relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling witnesses; costs of obtaining attendance of willing witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical considerations which make trial of a case easy, expeditious and inexpensive. Also to be considered are docket congestion, the burden of jury duty on citizens of the forum, and the plaintiff's right to choose a forum (Foster v. Chicago & North Western Transportation Co. (1984), 102 Ill.2d 378, 466 N.E.2d 198).

Defendant's motion suggested as alternative forums Ste. Genevieve County, Missouri, and Hennepin County, Minnesota, "as well as counties on each side of the Mississippi River in Minnesota and Wisconsin where the alleged occurrence happened."

The sole connections between this action and Madison County are (1) defendant admits doing some business in Madison County (see Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill.2d 73, 79, 457 N.E.2d 417, 420); (2) plaintiff's attorney's law office is in Madison County; and (3) according to plaintiff's affidavit, part of the occurrence took place in Madison County.

• 5 According to plaintiff's affidavit, all of his medical treatment took place in St. Louis, Missouri, which is much closer to Madison County than any forum in Minnesota and Wisconsin and somewhat closer to Madison County than Ste. Genevieve County, Missouri. As to potential occurrence witnesses, the record does not suggest where any of them (other than plaintiff) might be found, and since the alleged event occurred on board a moving vessel, we cannot presume that the consideration of travel by occurrence witnesses favors any one forum over another. While we might take judicial notice that docket congestion is a problem in Madison County, we find no indication of record as to the condition of dockets in the other forums suggested in defendant's motion.

• 6 At oral argument of this appeal, defendant's counsel suggested that the least inconvenient forum for trial of this case is St. Charles County, Missouri. Defendant's counsel informed this court at oral argument that defendant has an office in that county and is "doing business" there. The record does not show that defendant argued in the circuit court that St. Charles County was a less inconvenient forum than Madison County. An issue not presented to or considered by the circuit court cannot be raised for the first time on review. (Kravis v. Smith Marine, Inc. (1975), 60 Ill.2d 141, 147, 324 N.E.2d 417, 420.) Defendant also did not raise this issue in the briefs, and therefore defendant should not have raised it at oral argument. (87 Ill.2d R. 341(e)(7).) In any event, the record does not confirm that defendant has a St. Charles County office and is "doing business" there. A court of review can consider only matters that were in the record in the circuit court. Gromer v. Molby (1944), 385 Ill. 283, 285, 52 N.E.2d 772, 774.

In summary, we find the record insufficient to support defendant's contention that any of the suggested forums is preferrable to Madison County on grounds of forum non conveniens. For the foregoing reasons, the order of the circuit court of Madison County denying defendant's motion to transfer or dismiss this cause for want of venue or on ...

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