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04/16/87 Charles W. Weaver, v. Midwest Towing

April 16, 1987

CHARLES W. WEAVER, APPELLEE

v.

MIDWEST TOWING, INC., APPELLANT



SUPREME COURT OF ILLINOIS

507 N.E.2d 838, 116 Ill. 2d 279, 107 Ill. Dec. 685 1987.IL.517

Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County, the Hon. Horace Calvo, Judge, presiding.

APPELLATE Judges:

JUSTICE WARD delivered the opinion of the court. JUSTICE GOLDENHERSH took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD

The plaintiff, Charles W. Weaver, filed an action in the circuit court of Madison County under the Jones Act (46 U.S.C. sec. 688 (1982)), against the defendant, Midwest Towing, Inc., seeking damages for injuries he received while employed by the defendant as a deckhand on one of its vessels. The defendant moved to dismiss or transfer the cause for lack of proper venue, or in the alternative, on the ground of forum non conveniens. The circuit court denied the motion, and the appellate court, with one Justice Dissenting, affirmed (139 Ill. App. 3d 1075). We granted the defendant's petition for leave to appeal under our Rule 315 (103 Ill. 2d R. 315(a)).

The plaintiff's complaint alleges that on or about November 26, 1982, he sustained injuries after exposure to benzine gas leaking from the boat on which he was working. The plaintiff contends that the defendant was negligent in failing to maintain and inspect the boat, to warn the plaintiff of danger and to provide him with a safe place to work. The complaint alleges that the defendant operates boats, motor vessels, barges and equipment in and about Illinois and, specifically, in Madison County.

The defendant filed a motion to dismiss or transfer the case on the ground that venue is improper in Madison County or, in the alternative, that Madison County is an inappropriate forum under the doctrine of forum non conveniens. The defendant alleged that neither it nor the plaintiff is a resident of Madison County; that the accident which forms the basis of the plaintiff's complaint did not occur in Madison County; and that it is expected there will be no witnesses who are residents of Madison County.

In support of its motion, the defendant filed an affidavit of Eugene Fowler, the personnel manager of the defendant's parent company, Cargo Carriers. The affidavit set out that Cargo Carriers has its base of operations in Missouri and its principal offices in Minnesota; that Cargo Carriers has no offices or other facilities in Madison County; and that Cargo Carriers does not transact business in Madison County "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." The affidavit also stated that on November 26, 1982, the date on which the complaint alleged that the plaintiff was exposed to benzine gas, the plaintiff was aboard' the "M/V Arrowhead," which was in navigation upon the upper Mississippi River between Minnesota and Wisconsin.

The plaintiff, in an affidavit responding to the defendant's motion to dismiss or transfer, stated that his injuries resulted from "continuous exposure [to the benzine gas] from the upper Mississippi to and including passage through the Alton Lock and Dam" in Madison County. The plaintiff also stated that all of his medical treatment because of the exposure was provided in nearby St. Louis, Missouri, and that his employment assignments were issued in St. Louis.

After the trial court denied the defendant's motion the appellate court affirmed and remanded for further proceedings. In concluding that the trial court did not err in holding that venue in Madison County is proper, the appellate court stated that the defendant had failed to establish for purposes of the venue statute that it is not "doing business" in Madison County. It also held that venue is proper in Madison County on the ground that the plaintiff stated sufficient facts to show that part of his exposure to the benzine gas occurred in Madison County. The appellate court said, too, that the trial court did not abuse discretion in refusing to dismiss the action on forum non conveniens grounds, observing that the record was insufficient to support the defendant's contention that other forums were preferable to Madison County.

Venue is properly fixed in the county of residence of any defendant joined in good faith or in the county in which the transaction or some part thereof occurred out of which the cause of action arose. (Ill. Rev. Stat. 1983, ch. 110, par. 2-101.) On the question of the residence of corporations, section 2-102(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-102(a)) provides:

"Any private corporation or railroad or bridge company, organized under the laws of this State, and any foreign corporation authorized to transact business in this State is a resident of any county in which it has its registered office or other office or is doing business."

The defendant erroneously contends that the plaintiff had the burden of pleading and proving that the defendant is a resident of Madison County or that the transaction or a part of it occurred in Madison ...


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