Stephens v. Northern Indiana Public Service Co.

• Decision Date: 21 August 1980
• Docket Number: No. 79-244,79-244
• Citation: 42 Ill.Dec. 808,409 N.E.2d 423,87 Ill.App.3d 961
• Parties: , 42 Ill.Dec. 808 Larry STEPHENS, Plaintiff-Appellee, v. NORTHERN INDIANA PUBLIC SERVICE CO., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 423

409 N.E.2d 423

87 Ill.App.3d 961, 42 Ill.Dec. 808

Larry STEPHENS, Plaintiff-Appellee, v. NORTHERN INDIANA PUBLIC SERVICE CO., Defendant-Appellant.

No. 79-244.

Appellate Court of Illinois, Fifth District.

Aug. 21, 1980.

Burton C. Bernard, Bernard & Davidson, Granite City, for defendant-appellant.

Callis & Hartman, P. C. by David H. Adamson, III and Lawrence T. Hartman, Granite City, for defendant-appellee.

SPOMER, Justice:

This is an interlocutory appeal from an order of the Circuit Court of Madison County overruling the objection that it had no in personam jurisdiction over defendant-appellant Northern Indiana Public Service Company (NIPSCO).

Plaintiff-appellee Larry Stephens, an employee of Babcock and Wilcox Construction Company, was injured on March 26, 1974, while working on a construction project at defendant's Bailly Generating Station in Porter County, Indiana. He filed suit against NIPSCO in Madison County, Illinois, alleging that the Indiana corporation was doing business in the State of Illinois and was liable to him for its failure to provide him with a safe place to work.

After being served with process in LaPorte County, Indiana, on July 2, 1975, NIPSCO entered a special appearance, supported by affidavits of certain of its officers, objecting to the jurisdiction of the court over its person. (Ill.Rev.Stat., 1973, ch. 110, par. 20) According to the supporting affidavits, the defendant is an Indiana public utility corporation engaged in the business of supplying electricity and natural gas, on an intrastate basis only, in the northern part of Indiana, as authorized by the Public Service Commission of Indiana. It provides no utility service in Illinois, maintains no office in Illinois, has no regulatory authority from the Illinois Commerce Commission, is not licensed to do business in Illinois, and does no business in Illinois. The Bailly Generating Station generates electricity which is sold by NIPSCO to customers located within the State of Indiana, and its physical plant is located entirely within the State of Indiana. The affidavits further set forth the extent of NIPSCO's contacts with Illinois.

After the court below denied the jurisdictional objection, it entered a written statement pursuant to Supreme Court Rule 308(a) that its interlocutory order raised a question of law as to which there was substantial ground for difference of opinion and that an immediate appeal from the order might materially advance the ultimate termination of the litigation. (Ill.Rev.Stat.1977, ch. 110A, par. 308(a).) The question of law identified by the trial court and presented to us on this appeal is as follows:

"Does the Madison County, Illinois, Circuit Court have jurisdiction over the person of an Indiana corporation, doing business as an intrastate Indiana public utility, served with summons in Indiana in a suit brought by a person for personal injuries arising out of an accident which occurred during a construction project at the utility's Bailly Generating Station in Porter County, Indiana-the only contacts of the utility in Illinois being: (1) the utilization of banks in Chicago, Illinois, which are independent of the utility, through contractual arrangements, as depositories, disbursing agents for some of the utility's funds, as trustees under a mortgage on certain real estate owned by the utility and located in Indiana, as trustees of the utility's pension fund, and as stock transfer agents; (2) the utility's being party to an interconnection agreement between it and a second, unrelated Indiana corporation, pursuant to which agreement electrical power which is generated in Illinois may be purchased by the utility from said second Indiana corporation and electrical power generated by the utility may be sold to said second Indiana corporation which may transmit the power into Illinois; (3) ownership of natural gas pipelines located in Indiana which connect with interstate natural gas pipelines running between Illinois and Indiana and owned by entities independent of the said utility?"

We granted the defendant's timely application for leave to appeal and now reverse.

No findings were made by the trial court to indicate the legal premise upon which it based jurisdiction. Plaintiff primarily contends that defendant was doing business on a substantial and continuous basis in Illinois and therefore was "sufficiently present" in Illinois to be served as other resident corporations under sections 13.3 and 16 of the Civil Practice Act (Ill.Rev.Stat., 1973, ch. 110, pars. 13.3 and 16.) He also asserts jurisdiction is established by section 17, but does not specify whether he is relying on section 17(1)(a) (the transaction of any business within this state) or section 17(1)(b) (the commission of a tortious act within this state.) The relevant statutes in pertinent part provide:

"Sec. 13.3. Service on private corporations.

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.1971, ch. 110, par. 13.3.

"Sec. 16. Personal service outside State.

(1) 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.1971, ch. 110, par. 16(1).

"Sec. 17. Act submitting to jurisdiction-Process.

(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 of such acts:

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

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

(2) Service of process upon any person who is subject to the jurisdiction of the courts of this State, as provided in this section, may be made by personally serving the summons upon the defendant outside this State, as provided in this Act, with the same force and effect as though summons had been personally served within this State.

(3) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this Section."

The nature and extent of defendant's business activity in the State of Illinois must be determined from the question of law submitted by the trial court and the affidavits of defendant's officers contained in the record. Although plaintiff's attorney made an "affidavit in opposition," in which heattempted to state certain facts to support his argument that defendant was "doing business in Illinois," it is clear from the question of law submitted to us that the trial court did not rely on those facts. The affidavit failed to meet the requirements of Supreme Court Rule 191(a), ¹ as it was made on information and belief only, and shows on its face that he could not competently testify at the trial to those matters ² (Wicks v. Bank of Belleville (5th Dist. 1977), 56 Ill.App.3d 222, 371 N.E.2d 1007, 13 Ill.Dec. 915). In Wicks, the court considered an affidavit in opposition to a motion for summary judgment, such motion having the same requirements under Rule 191(a) as those made to contest jurisdiction over the person. The court there stated 371 N.E.2d at page 1011, 13 Ill.Dec. at page 919:

"Defendant's affidavit was not sufficient under the rule. The attorney for defendant who signed the affidavit did so on information and belief only. In Anderson 'Safeway' G.R.C. v. Champaign Asphalt Co, 131 Ill.App.2d 924, 266 N.E.2d 414, the court said of affidavits filed by an attorney at 266 N.E.2d at p. 417:

'The counter-affidavit filed by plaintiff's attorney, * * *, was not made on personal knowledge of the affiant. This affidavit, on its face, showed that affiant could not competently testify at the trial to the cause of the matters therein stated, as required by Supreme Court Rule 191(a) (Ill.Rev.Stat., 1979, ch. 110A, Sec. 191(a)). Unsupported conclusions in an affidavit in support of a motion for summary judgment are insufficient to raise a genuine issue of material fact. (Citing cases.)

'Mere allegation that a triable issue of facts exists does not create an issue of fact. (Citing cases.) Nor is an affidavit by a party's attorney to be tested by any different rule than that of any other affiant.' "

We note further that where jurisdiction is denied by the defendant, the burden of proving its presence rests on the party asserting it. O'Hare International Bank v. Hampton, 437 F.2d 1173 (7th Cir., 1971) at 1177; Houghton v. Piper Aircraft Corp. (1975), 112 Ariz. 365, 542 P.2d 24, 26; William v. Connolly (D.C. Minn. 1964), 227 F. Supp. 539.

Although the complaint alleges that defendant was "doing business in the State of Illinois, pursuant to contracts with power companies in Illinois and through purchases made in Illinois," the facts stated in the question of law and in the defendant's affidavits show otherwise. The record does not disclose "contracts with power companies in Illinois," but rather an interconnection agreement between defendant and an unrelated Indiana corporation, Commonwealth Edison Company of Indiana, Inc. The record discloses no "purchases made in Illinois." If plaintiff is referring to purchases of electricity, the record discloses that none was purchased in Illinois, but only in Indiana from this Indiana corporation. The record does not...