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07/20/87 Donald Ray Williams, v. Lawson & Lawson Towing

July 20, 1987

DONALD RAY WILLIAMS, PLAINTIFF-APPELLEE

v.

LAWSON & LAWSON TOWING COMPANY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

510 N.E.2d 1308, 158 Ill. App. 3d 53, 110 Ill. Dec. 277 1987.IL.1023

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

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS

The circuit court of Madison County denied the motion of defendant, Lawson & Lawson Towing Company, which appeared specially under section 2-301 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-301) and moved to quash service of summons in plaintiff's action to recover damages for personal injuries under the Merchant Marine Act of 1920 (46 U.S.C. sec. 688 (1982)), the Jones Act, and the general maritime law of the United States. The defendant denied that it does business in Illinois so to be subject to the jurisdiction of the Illinois courts. (Ill. Rev. Stat. 1985, ch. 110, par. 2-204.) We granted defendant leave to appeal under Supreme Court Rule 306(a)(1)(iii). 107 Ill. 2d 306(a)(1)(iii).

Plaintiff, whose residence does not appear of record, was injured while employed as a deckhand by defendant while aboard the M/V Superior on the Mississippi River near Alma, Wisconsin. Defendant is a Louisiana corporation with its principal place of business at Wynne, Arkansas. It is not authorized to do business in Illinois. It has no office or employee or officer in Illinois.

Defendant's only business is providing towing service on a fully found basis to Riverway Company, which owns a fleet of barges engaged in the transportation of grain and other commodities in bulk along the Mississippi River and, occasionally, the Ohio River. Defendant uses a fleet of six boats in this service, five of which are bare-boat chartered from Riverway.

Riverway barges are delivered to defendant's towboats midstream by "fleeters," contracted for by Riverway, by the use of harbor tugs. The barges are then moved in tow along the Mississippi River. At their destination, they are moved from the river in the same manner by terminal fleeting service. Defendant does not contract to move commodities of any Illinois business or make deliveries in Illinois. It does purchase fuel, food and supplies from Illinois businesses which are usually delivered to the towboats while midstream on the Mississippi River. Crewmen occasionally board defendant's boats within Illinois. Defendant has repairs made from time to time in Illinois shipyards located in Madison County, Illinois, and the barges in tow regularly move through locks and dams 26 and 27 within Madison County, where they are assisted by boats of Norman Brothers Towing Company located in Madison County, Illinois. The frequency of the purchasing of supplies and repairs is in dispute but we do not deem these matters significant to our decision.

Has defendant engaged in activities of such a character and extent so as to subject itself to the jurisdiction of the courts of the State of Illinois? (See generally Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847.) Did Lawson & Lawson have those minimum contacts with Illinois such that the maintenance of this action would not offend traditional notions of fair play? International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158; see also Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 368 N.E.2d 88 (wherein the court distinguishes "doing business" in the context of venue).

In Huffman v. Inland Oil & Transport Co. (1981), 98 Ill. App. 3d 1010, 424 N.E.2d 1209, defendant operated a towboat company which pushed barges along the Mississippi and Illinois rivers in Illinois. Plaintiff, a Missouri resident, was injured on the Tennessee River in Alabama. Defendant was a Missouri corporation with its principal place of business at St. Louis, Missouri. It maintained no office or employees in Illinois. We concluded that the business activity of defendant in Illinois was continuous and substantial where it "reflected a regular pattern of commerce and transportation by Inland throughout the waterways of the State." (98 Ill. App. 3d 1010, 1017, 424 N.E.2d 1209, 1215.) Lawson & Lawson argues that Huffman is distinguishable because it assumed the Illinois courts would extend in personam jurisdiction over nonresident defendants to the extent permitted by Federal due process considerations requiring only minimum contacts, as originally enunciated in International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154, followed in Nelson v. Miller (1957), 11 Ill. 2d 378, 389-90, 143 N.E.2d 673, 679, and St. Louis-San Francisco Ry. Co. v. Gitchoff (1977), 68 Ill. 2d 38, 369 N.E.2d 52, as the standard to be applied in Illinois. (See also Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 328, 368 N.E.2d 88, 91.) Defendant points out that in the subsequent case of Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847, the supreme court modified such an approach, requiring that a corporation will be considered to do business in Illinois if it conducts business of such a character and extent as to warrant the inference that it has subjected itself to the jurisdiction and laws of Illinois. See also Huck v. Northern Indiana Public Service Co. (1983), 117 Ill. App. 3d 837, 839, 453 N.E.2d 1365, 1368, and Maunder v. DeHavilland Aircraft of Canada, Ltd. (1983), 112 Ill. App. 3d 879, 882, 445 N.E.2d 1303, 1305.

Defendant also argues, distinguishing Huffman on its facts, that the activities of Inland were more substantial as it regularly picked up and delivered barges to Illinois terminals at Wood River, Lockport, Peoria and Chicago and regularly purchased supplies and services at Economy Boat Store in Wood River.

While there is no all-inclusive test for determining whether a foreign corporation is doing business in Illinois for jurisdictional purposes, measured by any reasonable standard, we are satisfied that subjecting defendant to the jurisdiction of the Illinois courts does not offend traditional notions of fair play. Defendant has more than minimal contacts with Illinois; in our opinion it carries on its usual and customary business in Illinois when it routinely travels along the Mississippi River within the geographical boundaries of Illinois.

In Schueren v. Querner Truck Lines, Inc. (1959), 22 Ill. App. 2d 183, 159 N.E.2d 835, the court observed that under the Enabling Act by which Missouri was admitted to the Union, "The Missouri Compromise," (Act of March 6, 1820, ch. 22, 3 Stat. 545), the boundary between Illinois and Missouri is the middle of the Mississippi River, but the States exercise concurrent jurisdiction over the entire river in matters ...


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