Shaffer v. CSX Transp., Inc.

• Decision Date: 06 February 1992
• Docket Number: No. 5-90-0218,5-90-0218
• Citation: 167 Ill.Dec. 546,587 N.E.2d 1161,224 Ill.App.3d 769
• Parties: , 167 Ill.Dec. 546 Donald Ray SHAFFER, Special Administrator of the Estate of Kimberly Rae Shaffer, a Minor, Deceased, and Donald Ray Shaffer and Carolyn Shaffer, Natural Parents of Kimberly Rae Shaffer, a Minor, Deceased, Plaintiffs-Appellees, v. CSX TRANSPORTATION, INC., formerly known as Chessie System Railroad, a Corporation, Defendant and Counterdefendant-Appellant (Robert Stookey, Special Administrator of the Estate of Scott Jolliff, Deceased, Defendant and Counterplaintiff-Appellee).
• Court: United States Appellate Court of Illinois

Page 1161

587 N.E.2d 1161

224 Ill.App.3d 769, 167 Ill.Dec. 546

Donald Ray SHAFFER, Special Administrator of the Estate of Kimberly Rae Shaffer, a Minor, Deceased, and Donald Ray Shaffer and Carolyn Shaffer, Natural Parents of Kimberly Rae Shaffer, a Minor, Deceased, Plaintiffs-Appellees, v. CSX TRANSPORTATION, INC., formerly known as Chessie System Railroad, a Corporation, Defendant and Counterdefendant-Appellant (Robert Stookey, Special Administrator of the Estate of Scott Jolliff, Deceased Defendant and Counterplaintiff-Appellee).

No. 5-90-0218.

Appellate Court of Illinois,

Fifth District.

Feb. 6, 1992.

Thomas E. Jones, Paul P. Waller, III, Walker & Williams, P.C., Belleville, for CSX Transp., Inc.

Kujawski, Rosen & Faerber, P.C., Belleville (Fritz G. Faerber, of counsel), for Donald Ray Shaffer, Carolyn Shaffer and Estate of Kimberly Shaffer.

Bernard J. Ysursa, Cook, Shevlin, Keefe & Ysursa, Ltd., Belleville, for Robert Stookey and Estate of Scott Jolliff.

Justice HOWERTON delivered the opinion of the court:

Kimberly Rae Shaffer, a minor, was killed while riding as a passenger in a car that collided with a train at a railroad crossing in Sandoval, Marion County, Illinois. Kimberly's parents, Donald Ray and Carolyn Shaffer, and Donald Ray Shaffer, as special administrator of the estate, sued defendants, CSX Transportation, Inc. (CSX), and Robert Stookey, special administrator of the estate of Scott Jolliff, the driver of the car, in St. Clair County. Kimberly Rae Shaffer and her parents lived in Sandoval, Marion County; Jolliff lived in Marion County; and CSX, a Virginia corporation, had its principal place of business in Jacksonville, Florida. Both defendants filed motions to transfer venue on the grounds of forum non conveniens. The circuit court denied their motions. We affirm.

Forum non conveniens is a judicially created doctrine that presupposes that venue is proper in more than one county. (Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill.2d 359, 74 Ill.Dec. 596, 456 N.E.2d 98.) In this case, venue would be proper in Marion County, where the incident occurred, and in St. Clair County, where defendant Stookey lives, and where defendant, CSX, does business. Ill.Rev.Stat.1989, ch. 110, pars. 2-101, 2-102.

Before we examine this particular case, however, the doctrine of forum non conveniens needs a brief, yet basic, discussion.

Insofar as the State system of courts is concerned, there are two types of forum non conveniens: interstate and intrastate.

Where interstate forum non conveniens is applied, the State court has jurisdiction over both the parties and the subject matter, but the court declines to exercise it, dismisses the case, and transfers it to another, more convenient State, usually conditioned upon the other State accepting jurisdiction as well as not barring the claim by application of that State's statute of limitations. See Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill.2d 511, 301 N.E.2d 729, cert. denied (1976), 424 U.S. 943, 96 S.Ct. 1411, 47 L.Ed.2d 349; Satkowiak v. Chesapeake & Ohio Ry. Co. (1985), 106 Ill.2d 224, 88 Ill.Dec. 55, 478 N.E.2d 370.

Where intrastate forum non conveniens is applied, the State court has jurisdiction over both the parties and the subject matter and the State retains jurisdiction and does not dismiss but instead transfers the case to another, more convenient county. Daiber v. Montgomery County Mutual Fire Insurance Co. (1989), 191 Ill.App.3d 566, 138 Ill.Dec. 787, 548 N.E.2d 17.

The difference, therefore, between interstate and intrastate forum non conveniens is that, in the former, jurisdiction is declined and the case is dismissed, whereas, in the latter, jurisdiction is retained, and the case is not dismissed but is transferred to another forum inside the State of Illinois. (Ill.Rev.Stat.1989, ch. 110, par. 2-104; Torres v. Walsh (1983), 98 Ill.2d 338, 74 Ill.Dec. 880, 456 N.E.2d 601; Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill.2d 359, 74 Ill.Dec. 596, 456 N.E.2d 98; Degraw v. Flowers Transportation, Inc. (1988), 167 Ill.App.3d 491, 118 Ill.Dec. 47, 521 N.E.2d 115, appeal denied (1988), 121 Ill.2d 568, 122 Ill.Dec. 435, 526 N.E.2d 828.) This distinction is important to clear analysis, simply because accurate analysis cannot proceed by treating interstate forum non conveniens and intrastate forum non conveniens as fungible doctrines.

The Illinois Supreme Court, in Torres v. Walsh (1983), 98 Ill.2d 338, 74 Ill.Dec. 880, 456 N.E.2d 601, prescribed the factors to be considered by the circuit court when deciding an intrastate forum non conveniens motion, which is the type of motion presented and the ruling thereon we here review; those factors are: (1) the availability of an alternate forum; (2) the access to sources of proof; (3) the accessibility of witnesses; (4) the relative advantages and obstacles to obtaining a fair trial; (5) the congestion of court dockets; and (6) the convenience of the parties. (Torres, 98 Ill.2d at 351, 74 Ill.Dec. at 886, 456 N.E.2d at 607.) As clear as that language seems, however, both bench and bar have been perplexed by application of forum non conveniens, and reexamination in light of fundamental principles from which we may not stray is most likely to shed light on proper application of that doctrine to the facts of a case.

There are two sources of law: the law the people make themselves through their representatives in the legislative branch of government; and common law, i.e., the law that is made on an ad hoc basis by the decisions of the judicial branch which recognize, affirm and enforce usages and customs of immemorial antiquity. Black's Law Dictionary 250-51 (5th ed. 1979).

Since the right of the people to make their own law is a primary right in our form of government, the legislature, with the executive branch of government, may codify the common law or, in the absence of common law, may formulate and announce law by drafting and enacting statutes.

Conflicts between the common law, which is broadly and perhaps too expansively expressed herein as judge-made law, and the law made by the people themselves through their legislature and the executive are avoided by two devices: first, the doctrine of separation of powers prevents the legislature and the executive from enacting laws that unduly exercise what are judicial powers (See Ill. Const.1970, art. II, § 1; Ill. Const.1970, art. VI, § 1; People v. Cox (1980), 82 Ill.2d 268, 45 Ill.Dec. 190, 412 N.E.2d 541); and second, when the legislature and the executive properly act within the scope of their powers and draft and execute statutes, the judicial branch, irrespective of whether there was any preexisting common law, may only interpret those statutes and may not amend them or disregard them. See In re Estate of Swiecicki (1985), 106 Ill.2d 111, 87 Ill.Dec. 511, 477 N.E.2d 488.

These fundamental, and therefore, most critical principles set out in the paragraphs immediately above inescapably are part of the matrix in which the doctrine of intrastate forum non conveniens is embedded. Failure to examine the doctrine in light of fundamental principles of government, as well as failure to examine and explain the proper mechanical application of the doctrine, leads to error. For example, since the advent of intrastate forum non conveniens, some, erroneously, have viewed the doctrine as being, in effect, an amendment to the venue statute (Ill.Rev.Stat.1989, ch. 110, par. 2-101), to be read so that situs of the incident becomes the most important factor. See, e.g., Vinson v. Allstate (1991), 144 Ill.2d 306, 162 Ill.Dec. 43, 579 N.E.2d 857; Carlberg v. Chrysler Motors Corp. (1990), 199 Ill.App.3d 127, 145 Ill.Dec. 382, 556 N.E.2d 1284, appeal denied (1990), 135 Ill.2d 554, 151 Ill.Dec. 380, 564 N.E.2d 835.

Venue is the place where a case is to be tried and where jurors are to be provided. (Black's Law Dictionary 1396 (5th ed. 1979).) The venue statute, in fact, is a legislative declaration of the convenience of the forum. (See Ill.Ann.Stat., ch. 110, par. 2-101, Historical and Practice Notes, at 56-57 (Smith Hurd 1983), quoting Sunderland, Observations on the Illinois Practice Act, 28 Ill.L.Rev. 861, 863-64 (1934).) That this legislative declaration is the declaration of the people themselves, by virtue of our representative theory of government, is beyond doubt and needs neither citation nor argument to be sustained as a proposition. The source of the venue statute having been shown, it is necessary to examine the source of forum non conveniens, for it, too, in order to be legitimate, must have a source, a doctrinal foundation firmly placed upon some discrete, sound basis that exists in the common law. Forum non conveniens is not a doctrine of constitutional law; rather, it is a doctrine of equity (Griffith v. Mitsubishi Aircraft International Inc. (1990), 136 Ill.2d 101, 105, 143 Ill.Dec. 274, 276, 554 N.E.2d 209, 211) that limits the application of a statute; that is to say, courts--irrespective of clear language within a statute--simply refuse to enforce that statute as it was written, but instead limit its scope, all in the name of "equity," which broadly means in the spirit of fairness, justness and right. See Black's Law Dictionary 484 (5th ed. 1979).

Courts, as a general rule, however, are reluctant to invoke equity to refuse to apply an act of the legislature, and this reluctance, insofar as it has found its way into the law of forum non conveniens, is expressed by allowing transfer to another forum only when relevant factors "strongly favor defendant" (Torres v. Walsh (1983), 98 Ill.2d 338, 74 Ill.Dec. 880, 456 N.E.2d 601), and that expression of reluctance is most necessary to avoid both judicial activism and judicial legislation, is most necessary to defer to the right of the people to make law through their legislature, and is most necessary to preserve and maintain a proper balance between the three...