Huffman v. Inland Oil & Transport Co.

• Decision Date: 29 July 1981
• Docket Number: No. 79-322,79-322
• Citation: 98 Ill.App.3d 1010,424 N.E.2d 1209,54 Ill.Dec. 306
• Court: United States Appellate Court of Illinois
• Parties: , 54 Ill.Dec. 306 Howard D. HUFFMAN, Plaintiff-Appellee, v. INLAND OIL & TRANSPORT CO., a corporation, Defendant-Appellant.

Page 1209

424 N.E.2d 1209

98 Ill.App.3d 1010, 54 Ill.Dec. 306

Howard D. HUFFMAN, Plaintiff-Appellee, v. INLAND OIL & TRANSPORT CO., a corporation, Defendant-Appellant.

No. 79-322.

Appellate Court of Illinois, Fifth District.

July 29, 1981.

Rehearing Denied Sept. 3, 1981.

Burton C. Bernard, Bernard & Davidson, Granite City, and Daryl F. Sohn and Gary T. Sacks, Goldstein & Price, St. Louis, Mo., for defendant-appellant.

Joseph Cohn, Cohn, Carr, Korein, Kunin, Schlichter & Brennan, East St. Louis, for plaintiff-appellee.

KASSERMAN, Presiding Justice:

Plaintiff, Howard D. Huffman, brought action against defendant, Inland Oil & Transport Co., for injuries sustained by plaintiff while serving as a crew member on defendant's river towboat. The injuries allegedly occurred at a time when the vessel was located on the Tennessee River in the State of Alabama. Suit was brought in Madison County, Illinois, and following a jury trial, plaintiff was awarded damages in the amount of $185,000.

On appeal, defendant challenges the propriety of permitting the suit to be maintained in Illinois and urges (1) that the trial court erred in ruling that it had in personam jurisdiction over defendant and (2) that the court erred in denying defendant's motion to dismiss the complaint on the grounds of forum non conveniens.

Plaintiff filed suit in the circuit court of Madison County, seeking to recover damages for injuries sustained in 1976 on the M/V Lady Marjorie. Suit was brought under the Jones Act (46 U.S.C. § 688) and general maritime law. Plaintiff purported to serve process by delivering a copy of the complaint and summons to Herbert Wolkowitz, President of Inland Oil & Transport Co., at the company's office in St. Louis, Missouri. Inland filed a special appearance for the purpose of objecting to the court's jurisdiction. The appearance was supported by an affidavit of Mr. Wolkowitz, which asserted, inter alia, that the incident referred to in plaintiff's complaint did not occur in the State of Illinois and that Inland had not at any relevant time been doing business within the State of Illinois.

Subsequently, plaintiff made a second attempt at service of process by delivering a copy of the complaint and summons to Max Terrell aboard the M/V Lady Rosemary, a river towboat operated by Inland, while the towboat was near Hartford, Illinois. Inland entered a second special appearance, again supported by an affidavit of Mr. Wolkowitz. The affidavit asserted that Max Terrell was not an officer or agent of Inland Oil and was not authorized to accept service of process on behalf of Inland. The affidavit further stated that Terrell, the pilot of the Lady Rosemary, was not a regular employee of Inland Oil but had been hired only as a trip pilot to relieve other towboat pilots employed by Inland. In addition, the affidavit asserted that any visits by any of Inland's river towboats within the State of Illinois were infrequent and sporadic in nature.

In response to the second special appearance, plaintiff filed the affidavits of Michael D. Lucey, Joseph Cohn, and Gary Oplt, all of whom were employees of the law firm which represented plaintiff. The affidavit of Michael D. Lucey asserts that Lucey inspected records maintained by the Corps of Engineers with respect to traffic passing through Lock and Dam No. 27 located near Granite City, Illinois, for the period from January through July, 1977. Attached to the affidavit was a list which Lucey asserted showed dates of movements, points of origin, and points of destination of vessels operated by Inland Oil. While Lucey did not claim to have personal knowledge of the vessel movements, the exhibit reflected 34 instances of Inland vessels traveling through Lock and Dam No. 27.

The affidavit of Joseph Cohn consisted of conclusions derived from the data obtained by Michael Lucey. Cohn concluded that on 11 occasions from January through July, 1977, Inland picked up a total of 44 barges at a refinery in Wood River, Illinois; on four occasions, Inland delivered a total of 10 empty barges to the Wood River refinery; on five occasions, a total of 20 loaded barges were delivered to Lockport, Illinois; twice Inland picked up empty barges at Lockport; three times Inland delivered a total of 30 loaded barges to Peoria; and on three occasions, a total of 14 loaded barges were delivered in Chicago.

The affidavit of Gary Oplt asserted that Oplt contacted employees at Economy Boat Store in Wood River, who advised him that crew members of Inland vessels frequently purchase supplies, merchandise, and services from the store.

The fourth affidavit presented by plaintiff was that of Barry Wilson, a patrolman for the National Maritime Union. Mr. Wilson's affidavit set forth the customary duties of a pilot on a vessel navigating the Inland Waterway System.

Inland made no objection to the affidavits submitted by plaintiff and submitted no additional evidence or affidavits. After oral argument, the trial court overruled Inland's objection to jurisdiction, holding that both the service of process on Mr. Wolkowitz and Mr. Terrell conferred upon the court in personam jurisdiction over defendant.

Subsequently, defendant filed a motion to dismiss on the grounds of forum non conveniens. Attached was the affidavit of a defense attorney. The affidavit asserted that plaintiff was a Missouri resident, Inland was a Missouri corporation, and the accident occurred in Alabama; that the physicians who treated plaintiff and the hospitals at which plaintiff was treated were either in Missouri or Alabama; that all of the occurrence witnesses known to defendant were residents of Missouri; and that trial of the case in Madison County, Illinois, would unnecessarily burden defendant, the court, occurrence witnesses, treating physicians, and the taxpayers of Madison County. Plaintiff denied that the action had been filed in order to cause vexation to Inland or that the action would burden Inland or the witnesses. After a hearing, the motion to dismiss was denied.

At trial, witnesses established that the plaintiff lost three fingers of his right hand as a result of an incident in the pilothouse of the M/V Lady Marjorie, in which a defective hydraulic window caught and crushed plaintiff's hand. The jury found for plaintiff and rendered verdict in the amount of $185,000, and defendant appeals after judgment on the verdict was entered in favor of plaintiff. No issue is raised by defendant as to any alleged trial error.

Defendant's first allegation on appeal is that it is a foreign corporation and that the trial court erred in finding that it had in personam jurisdiction over it.

The relevant sections of the Civil Practice Act relating to service of process on private corporations (sections 13.3, 16(1), and 17(1)) provide as follows:

"A private corporation may be served (1) by leaving a copy of the process with its registered agent or any officer or agent of said corporation found anywhere in the State; or (2) in any other manner now or hereafter permitted by law. A private corporation may also be notified by publication and mail in like manner and with like effect as individuals." (Ill.Rev.Stat.1979, ch. 110, par. 13.3.)

"Personal service of summons may be made upon any party outside the State. If upon a citizen or resident of this State or upon a person who has submitted to the jurisdiction of the courts of this State, it shall have the force and effect of personal service of summons within this State; otherwise it shall have the force and effect of service by publication." (Ill.Rev.Stat.1979, ch. 110, par. 16(1).)

"Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any such acts:

(a) The transaction of any business within this State;

(b) The commission of a tortious act within this State;

(c) The ownership, use, or possession of any real estate situated in this State;

(d) Contracting to insure any person, property or risk located within this State at the time of contracting;

(e) With respect to actions of divorce and separate maintenance, the maintenance in this State of a matrimonial domicile at the time the cause of action arose or the commission in this State of any act giving rise to the cause of action. " (Ill.Rev.Stat.1979, ch. 110, par. 17(1).)

Assuming compliance with Federal due process, it is for each state to determine to what extent it will extend in personam jurisdiction to foreign corporations. (St. Louis-San Francisco Ry. v. Gitchoff (1977), 68 Ill.2d 38, 11 Ill.Dec. 598, 369 N.E.2d 52.) The limits on state exercise of jurisdiction are not mechanical or quantitative (International Shoe Co. v. Washington (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95), but are found only in the requirement that provisions for jurisdiction be fair and reasonable under the circumstances. Braband v. Beech Aircraft Corp. (1978), 72 Ill.2d 548, 21 Ill.Dec. 888, 382 N.E.2d 252.

In the past one hundred years, the concept of in personam jurisdiction has developed from one which required service of process within the state (Pennoyer v. Neff (1877), 95 U.S. 714, 24 L.Ed. 565) to one which satisfies the requirements of due process where either the act or transaction sued on occurs within the state or where defendant has engaged in a sufficiently substantial course of activity in the state, provided always, however, that reasonable notice and opportunity to be heard are afforded. (Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill.2d 432, 176 N.E.2d 761.) By their terms, sections 16 and 17 of the Civil Practice Act reflect a legislative intent to expand the jurisdiction of Illinois over nonresident defendants to the extent permitted by...