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02/20/87 Robert Barnes, v. Southern Railway Company

February 20, 1987

ROBERT BARNES, APPELLEE

v.

SOUTHERN RAILWAY COMPANY, APPELLANT



SUPREME COURT OF ILLINOIS

507 N.E.2d 494, 116 Ill. 2d 236, 107 Ill. Dec. 581 1987.IL.189

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. James K. Donovan, Judge, presiding.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. JUSTICE GOLDENHERSH, Dissenting. JUSTICE SIMON, also Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

The plaintiff, Robert Barnes, brought this action in the circuit court of St. Clair County pursuant to the Federal Employers' Liability Act (45 U.S.C. sec. 51 et seq. (1982)) for personal injuries allegedly caused by the negligence of his employer, the Southern Railway Company (Southern). The circuit court denied Southern's motion to reconsider a prior order denying its motion to decline jurisdiction on the grounds of forum non conveniens. Pursuant to Supreme Court Rule 306 (94 Ill. 2d R. 306(a)(1)(ii)), Southern filed a petition for interlocutory appeal from this order, which was granted. The plaintiff then filed a motion to dismiss the appeal which was taken with the case. The appellate court granted the motion and dismissed the appeal for lack of jurisdiction. (141 Ill. App. 3d 121.) We allowed Southern's petition for leave to appeal under our Rule 315 (103 Ill. 2d R. 315(a)).

The plaintiff commenced this action by filing a complaint in the circuit court of St. Clair County on July 27, 1983. The complaint sought redress for alleged personal injuries purportedly arising from exposure to noxious and poisonous fumes while employed as a painter in Southern's "Gest Yard" in Cincinnati, Ohio. The action was predicated on alleged violations of Southern's duties under the FELA.

Southern was served with summons and a copy of the complaint on September 27, 1983. On October 31, 1983, Southern filed an answer denying the allegations. In an apparent effort to determine whether a factual basis existed to warrant the filing of a motion to decline jurisdiction because St. Clair County was not a convenient forum in which to litigate the cause, Southern also propounded interrogatories to the plaintiff and requested production of relevant documents, including income tax returns, hospital and doctor bills, and medical reports.

Approximately eight months after the filing of the plaintiff's complaint, Southern, on March 15, 1984, filed a motion asking the circuit court to decline jurisdiction of the cause and to dismiss it on the theory of forum non conveniens. Although Southern filed a memorandum in support of its motion, it did not file an affidavit or verified suggestions.

On October 5, 1984, almost one year after having served interrogatories on the plaintiff, Southern filed a motion to compel the plaintiff to answer the interrogatories and to produce the documents requested. Southern alleged in this motion that it was unable to file an affidavit in support of its prior forum motion because of its inability to determine the identity and place of residence of potential witnesses. The circuit court granted the motion on November 1, 1984, and ordered compliance with Southern's discovery pleadings within 28 days. On November 30, 1984, answers to the interrogatories and relevant discovery documents were filed by the plaintiff.

On January 29, 1985, Southern filed an affidavit in support of its prior motion to decline jurisdiction. In its affidavit, Southern alleged that: (1) the plaintiff was a resident of Florence, Kentucky; (2) the alleged injury was sustained in Cincinnati, Ohio; (3) Cincinnati, Ohio, is approximately 330 miles from Belleville, Illinois, the site of the St. Clair County courthouse; (4) the testimony of employee and non-employee witnesses would be required and that these witnesses were residents of Kentucky and Ohio; (5) since the nonemployee witnesses were Kentucky and Ohio residents, they could not be compelled to appear in Illinois; (6) the railroad would incur large expenses if the case proceeded to trial in Illinois; (7) the absence of employee witnesses for unknown periods of time would disrupt the operation of the railroad; (8) there was a large backlog of cases in St. Clair County; and (9) jury duty would constitute an unreasonable burden to the citizens of St. Clair County.

After hearing arguments by counsel, the circuit court denied the forum motion on March 6, 1985. The court noted that the cause had absolutely no connection with St. Clair County other than being the place where the plaintiff chose to file his action. However, the court, relying on Herbert v. Louisville & Nashville R.R. Co. (1985), 130 Ill. App. 3d 624, denied the forum motion because the motion was not filed within the time in which Southern was required to answer.

On March 19, 1985, Southern filed a motion which was labeled a "Motion to Reconsider" the circuit court's denial of its forum motion. The circuit court denied this motion on April 3, 1985. Pursuant to Rule 306 (94 Ill. 2d R. 306(a)(1)(ii)), Southern, on May 3, 1985, filed a petition for leave to appeal to the appellate court from the circuit court's April 3, 1985, order. The petition was granted on June 7, 1985. The plaintiff thereafter filed a motion to dismiss the appeal which was taken with the case. The appellate court granted the motion and dismissed the appeal on the ground that it lacked jurisdiction because the appeal was not taken within 30 days of the denial of the original forum motion. 141 Ill. App. 3d 121.

Supreme Court Rule 306 governs interlocutory appeals from orders of the circuit court granting or denying certain motions. Following its amendment, Rule 306 provides in relevant part:

"An appeal may be taken in the following cases only on the allowance by the Appellate Court of a ...


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