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06/16/87 John R. Peterson Et Al., v. Monsanto Company Et Al.

June 16, 1987





510 N.E.2d 458, 157 Ill. App. 3d 508, 109 Ill. Dec. 590 1987.IL.820

Appeal from the Circuit Court of Madison County; the Hon. A. A. Matoesian, Judge, presiding.


PRESIDING JUSTICE KARNS delivered the opinion of the court. KASSERMAN and HARRISON, JJ., concur.


Thirty-two plaintiffs filed a multicount complaint against defendants Monsanto Company and The Dow Chemical Company in the circuit court of Madison County to recover compensatory and punitive damages because of injuries received when exposed to herbicides manufactured and sold to Union Electric Company and Arkansas-Missouri Power Company. Thirty plaintiffs are past or present employees of Union Electric Company and in a few instances, Arkansas-Missouri Power Company. Two are the wife and daughter of one of the employees. All plaintiffs are residents of the State of Missouri. The actions are based on product liability and, generally, willful concealment from the plaintiffs of the dangerous and permanent effects of "dioxin" contained in the herbicides. Monsanto Company, the only party to this appeal, responded by filing a motion to transfer for improper venue under section 2-104 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-104). Monsanto Company was granted leave to appeal under Supreme Court Rule 306(a)(1)(iv) (103 Ill. 2d R. 306(a)(1)(iv)) from the denial of the motion.

Monsanto Company is a Delaware corporation authorized to transact business in Illinois. Its principal place of business is St. Louis, Missouri. It maintains no registered office in Madison County. Under sections 2-101 and 2-102(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-101, 2-102(a)), it is subject to suit only in a county where it is "doing business" or "in the county in which the transaction or some part thereof occurred out of which the cause of action arose."

The essential factual allegation of each complaint, with the exception of those of the wife and daughter of the plaintiff Bettis, is that each plaintiff while an employee of Union Electric Company or Arkansas-Missouri Power Company, "engaged in spraying and/or other duties in support of said spraying, and/or was required to work in areas that had recently been sprayed with herbicides manufactured, distributed and sold by the defendants, and thereby became exposed to the chemical contaminant commonly known as 'Dioxin'." In the case of the wife and daughter of Bettis, the complaints allege that they were exposed to the clothing and person of Bettis contaminated with dioxin. The dioxin is alleged to have been contained within the herbicide 2,4,5 trichlorophenoxyacetic acid (2,4,5-T), manufactured and sold from approximately 1960 through 1979.

The trial court did not specify the basis for its ruling in denying defendant's motion to transfer to proper venue. If it based its decision on the factual finding that Monsanto was doing business in Madison County, we conclude this finding was contrary to the manifest weight of the evidence. See Blakey v. Commonwealth Edison Co. (1977), 52 Ill. App. 3d 454, 367 N.E.2d 529.

he evidence is conclusive that Monsanto maintains no warehouse, regional office or sales office in Madison County, nor does it engage in the direct sale of its products to consumers, although its salesmen at times solicit sales of industrial chemicals to Madison County accounts. It does not finance dealer purchases or engage in cooperative advertising with dealers. Admittedly its products are sold in Madison County through dealers but one would suppose that its products are sold by dealers throughout the United States. It could not be contended that this circumstance alone is significant for purposes of fixing venue.

It is established under Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 368 N.E.2d 88, that in order to fix venue in a county, "quantitatively more business activity within the county must be demonstrated than where the question is whether the defendant has transacted any business within the State for purposes of service of process . . .. The defendant must, in short, be conducting its usual and customary business within the county in which venue is sought." (67 Ill. 2d 321, 329, 368 N.E.2d 88, 92.) Plaintiffs argue that defendant is conducting its usual and customary business in Madison County because an employee, Carl Wiedner, resides there and works out of his residence. Plaintiffs argue that Wiedner is "maintained" by defendant in Madison County. Wiedner is not "maintained" in Madison County by defendant. He resides there because of personal choice. His work is directed from the Decatur office. Monsanto does not pay any part of his home expenses or require his residence there. He does no direct selling of Monsanto's products, nor does he solicit orders, but only engages in promotional activities, principally with farmers, not only in Madison County but also in St. Clair, Bond and Clinton counties. Even if he solicited sales, such activities by the B&O's district sales manager in Madison County were not considered a significant factor in determining whether the B&O was transacting business in Madison County in Mosele. Monsanto's contacts with Madison County are not as extensive as those of International Harvester in the forum county in Stambaugh v. International Harvester Co. (1984), 102 Ill. 2d 250, 464 N.E.2d 1011, and Gardner v. International Harvester Co. (1986), 113 Ill. 2d 535, 499 N.E.2d 430, where the supreme court further refined the concept of doing business for venue purposes. In both these cases the court concluded that International Harvester was not doing business for purposes of venue.

Stambaugh and Gardner cited with approval this court's decision in Hartung v. Central Illinois Public Service Co. (1982), 110 Ill. App. 3d 816, 443 N.E.2d 16, where we held that the occasional purchase of materials and services in a county was not doing business for venue purposes. Wiedner's activities in Madison County are only incidental to Monsanto's usual and customary business.

This is not like Weaver v. Midwest Towing, Inc. (1986), 139 Ill. App. 3d 1075, 487 N.E.2d 1259, where defendant merely asserted in a conclusory manner that it was not doing business in the forum county. Here Monsanto supplied uncontroverted evidence that its activities in Madison County were not its usual and customary business under the test of Mosele, Stambaugh and Gardner.

Venue may also be laid in Madison County under section 2-101(2) of the Code of Civil Procedure if "the transaction or some part thereof occurred" in Madison County. (Ill. Rev. Stat. 1985, ch. 110, par. 2-101(2).) Thirty-two plaintiffs have joined their actions in separate counts in a single complaint. While the rules of permissive joinder allow such a procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-404), for purposes of venue, these counts must be considered separate actions and each plaintiff must establish that "the transaction or some part thereof" occurred in Madison County as to him individually when venue is premised on section 2-101(2) of the Act. (See 2 C. Nichols, Illinois Civil Practice sec. 917, at 115 (1979).) Logic dictates, and plaintiffs do not argue otherwise ...

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