source: Caselaw Access Project

author: PRESIDING JUSTICE FREEMAN

license: Public Domain

text:
    CHESTER LICHON, Plaintiff, v. ACETO CHEMICAL COMPANY, LTD., Defendant and Third-Party Plaintiff-Appellant (J.D. Campbell Sales, Ltd., Third-Party Defendant-Appellee).
    First District (3rd Division)
    No. 1—88—2253
    Opinion filed April 19, 1989.
    Rehearing denied June 7, 1989.

      Michael S. Danian, of Waukegan, for appellant.
    McCullough, Campbell & Lane, of Chicago (Michael C. Cook and Henry T. French, Jr., of counsel), for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Chester Lichon, filed suit against defendant, Aceto Chemical Company, Ltd. (Aceto), in the circuit court of Cook County for personal injuries sustained when he came in contact with drums leaking a chemical known as Phorate Technical, owned by Aceto. Aceto filed a third-party complaint for contribution against the Phorate’s manufacturer, J.D. Campbell Sales, Ltd. (Campbell), an English company. Service of summons was had upon Campbell in England. Pursuant to Campbell’s motion, the trial court dismissed Aceto’s amended third-party complaint for lack of personal jurisdiction on the basis of Asahi Metal Industry Co. v. Superior Court (1987), 480 U.S. 102, 94 L. Ed. 2d 92, 107 S. Ct. 1026. Aceto appeals.

Aceto’s amended third-party complaint alleged the following facts. Campbell shipped 72 drums of Phorate Technical from Greenock, England, to Port Seatrain, Weehawken, New Jersey, for Aceto. The Phorate Technical was intended for delivery to Aceto’s customer, Aidex, in Council Bluffs, Iowa. On December 12, 1976, the truck transporting the Phorate to Iowa overturned. On December 15, it was discovered at the Chicago terminal of the trucking company that the drums of Phorate were leaking. The record further reveals that Phorate Technical is used in the manufacture of insecticides.

Aceto also alleged that Campbell knew or should have known that Aceto would transport the Phorate by truck and that, given the highly toxic nature of Phorate, drums of adequate strength and labeling would be required in the event of an accident. Aceto alleged that Campbell’s negligent failure to provide adequate containers and label-ling was the proximate cause of the leaking drums and the injuries to plaintiff.

Opinion

In Asahi, eight justices agreed that the State of California’s exercise of jurisdiction over a Japanese defendant would be fundamentally unfair, i.e., not in keeping with “traditional notions of fair play and substantial justice.” (Asahi, 480 U.S. at 113, 94 L. Ed. 2d at 105, 107 S. Ct. at 1033.) The court stated that the reasonableness of the exercise of jurisdiction depended in each case on the burden to the defendant, the interests of the forum State, the plaintiff’s interest in obtaining relief and the interests of other States or, as in the case before it, other nations in obtaining the most efficient resolution of controversies. Asahi, 480 U.S. at 113, 94 L. Ed. 2d at 105, 107 S. Ct. at 1033-34.

The justices split, however, over whether the Japanese defendant otherwise had sufficient minimum contacts with the State of California to allow California to exercise jurisdiction over it.

Justice O’Connor, with whom three justices concurred, stated that “the substantial connection,” necessary for minimum contacts between a defendant and forum State “must come about by an action of the defendant purposefully directed toward the forum State.” She further held that placing a product into the stream of commerce was not such an act “without more.” Finally, Justice O’Connor held that a defendant’s “awareness that the stream of commerce may or will sweep the product into the forum State did not convert the mere act of placing the product into the stream” into an act purposefully directed at the forum State. Because the Japanese defendant neither solicited, did business, advertised, had offices, agents, employees or property in California, nor created, controlled or employed the distribution system that brought its valves to California, Justice O’Connor concluded that it had not purposefully availed itself of the California market. Asahi Metal Industry Co. v. Superior Court (1987), 480 U.S. 102, 112, 94 L. Ed. 2d 92, 104, 107 S. Ct. 1026, 1033 (opinion of O’Connor, J., joined by Rehnquist, C.J., and Powell and Scalia, JJ.).

Justice Brennan, with whom three justices also concurred, concluded that a defendant’s mere awareness that the stream of commerce would sweep its product into the forum State sufficed to establish the minimum contacts necessary for an exercise of jurisdiction over the defendant by the forum. Justice Brennan reasoned that as long as a participant in the stream of commerce, i.e., the regular, anticipated flow of products from manufacture to distribution to retail sale, was aware that the final product would be marketed in the forum State, the possibility of a lawsuit there could not come as a surprise. Justice Brennan believed that benefits to such a defendant accrued regardless whether it directly conducted business in the forum State or engaged in additional conduct directed toward that State. Asahi Metal Industry Co. v. Superior Court (1987), 480 U.S. 102, 116, 94 L. Ed. 2d 92, 107, 107 S. Ct. 1026, 1035 (opinion of Brennan, J., joined by White, Marshall and Blackmun, JJ.).

On appeal, Aceto contends that the requirements of the unanimous opinion in Asahi for the exercise of personal jurisdiction over a foreign defendant, in keeping with traditional notions of fair play and substantial justice, were met in this case. It further asserts that the requirements for the exercise of personal jurisdiction over Campbell under the stream of commerce theory of minimum contacts espoused by Justice Brennan in Asahi were also met in this case. Finally, Aceto maintains that our supreme court’s opinion in Wiles v. Morita Iron Works Co. (1988), 125 Ill. 2d 144, 530 N.E.2d 1382, does not compel a contrary conclusion.

In Wiles, our supreme court concluded that both of the stream of commerce theories of minimum contacts articulated in Asahi required the defendant’s awareness that his product was being marketed in the forum State. Relying on the defendant’s lack of awareness that the plaintiff’s employer intended to transport to Illinois two of the four machines purchased from it in Japan or that the employer had a plant in Illinois, the Wiles court found that the defendant did not have the requisite minimum contacts with Illinois. (Wiles, 125 Ill. 2d at 160.) The Wiles court also stated that “[fjactors such as the plaintiff’s interest in obtaining relief, the burden on the defendant in being forced to litigate in a foreign forum, and the forum State’s interest in adjudicating the matter are generally addressed only after ‘it has been decided that a defendant purposefully established minimum contacts with the forum State.’ ” (Wiles, 125 Ill. 2d at 161-62, quoting Burger King Corp. v. Rudzewicz (1985), 471 U.S. 462, 476, 85 L. Ed. 2d 528, 543, 105 S. Ct. 2174, 2184.) In other words, a court need not inquire whether the exercise of personal jurisdiction over a defendant would comport with traditional notions of fair play and substantial justice where the defendant has no minimum contacts with the forum.

Aceto asserts that, unlike the situation in Wiles, Campbell shipped its product to the United States, i.e., introduced it into the stream of commerce, and was aware that Aceto would transport and distribute it through any number of States, including Illinois, to buyers of the product. Aceto reasons that, in using it as a distributor, Campbell was purposefully availing itself of Illinois in the process of marketing its product. Aceto notes the Wiles court’s recognition of Justice O’Con-nor’s reliance in Asahi on the fact that Asahi had not designed its product with the California market in mind. In contrast, Aceto asserts, Campbell had to design its product, its container and labelling for all the United States, including Illinois, i.e., for approval by the United States Environmental Protection Agency, regardless whether its product was being used in or merely transported through any State. Because Campbell must have known of the highly toxic nature of its product, EPA requirements to which it was subject and the use for its product throughout the United States, Aceto finally concludes, it had sufficient minimum contacts with Illinois for the exercise of jurisdiction over it.

On the other hand, Campbell asserts that under Wiles we must determine first whether it had sufficient minimum contacts with Illinois and, only if it did, then determine whether an exercise of personal jurisdiction over it would offend traditional notions of fair play and substantial justice. Campbell asserts that under either Justice O’Connor’s or Justice Brennan’s interpretation of the stream of commerce theory of minimum contacts,, it had insufficient contacts with Illinois.

Specifically, Campbell notes the following. It does no business and has no plants or agents in Illinois. Its negotiations and other dealings with Aceto took place either at Aceto’s headquarters in Flushing, New York, or Campbell’s headquarters in Manchester, England. Moreover, it notes that in Wiles the American buyer of the product at issue delivered it to and used it in Illinois and there was evidence that the Japanese defendant had knowledge of the buyer’s intent to do so. It asserts that here, in contrast, its product was intended for delivery to and use in Iowa, not Illinois, and that Campbell was not aware that its product would be marketed in, or even pass through, Illinois. Given the Japanese defendant’s knowledge in Wiles of the buyer’s intent to deliver its product to and use it in Illinois, Campbell argues, similar knowledge on its part of Aceto’s plans for the Phorate would be insufficient to establish minimum contacts with Illinois.

Even assuming that Campbell did have sufficient minimum contacts with Illinois under either Justice O’Connor’s or Justice Brennan’s interpretation of the stream of commerce theory, Campbell argues, the exercise of jurisdiction over it would offend traditional notions of fair play and substantial justice. Campbell lastly asserts that, contrary to Aceto’s assertion, the fact that Phorate is a highly toxic substance has no bearing on the determination whether Illinois may exercise personal jurisdiction over it. Campbell likens Aceto’s argument to, inter alia, the “dangerous instrumentality” theory rejected in World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559.

As will be made clear below, we reject Campbell’s stream of commerce analysis and its argument that the toxic nature of its product is irrelevant to the issue here. However, we agree with it that Illinois cannot exercise jurisdiction over it in keeping with traditional notions of fair play and substantial justice.

Notwithstanding the parties’ chief reliance on Asahi and Wiles, we do not believe they control the first determination we must make, i.e., whether Campbell had sufficient minimum contacts with Illinois to allow it to exercise in personam jurisdiction over Campbell. Rather, we believe that determination is governed by the analysis undertaken in a line of Federal court cases dealing with hazardous and/or toxic products represented by Violet v. Picillo (D.R.I. 1985), 613 F. Supp. 1563, and including Allied Towing Corp. v. Great Eastern Petroleum Corp. (E.D. Va. 1986), 642 F. Supp. 1339, cited by Aceto.

In Allied Towing, the issue was whether Virginia could exercise personal jurisdiction over a Pennsylvania public utility (PGW) which did no business, either directly or indirectly, in Virginia. PGW had sold a by-product of an oil-to-natural gas manufacturing process to Sealand, which intended to use the by-product to make roofing materials. Sealand had the by-product stored in a Pennsylvania facility. The storage concern eventually sold the by-product to the Great Eastern Petroleum Corporation which, in turn, sold it to Allied Petroleum, Inc. Great Eastern contracted with plaintiff to transport the by-product from Pennsylvania to Virginia. Upon its arrival in Virginia, Allied Petroleum refused delivery. All prior owners of the by-product denied liability and refused to arrange for its removal. In articulating the parameters of the due process inquiry into whether PGW was amenable to suit in Virginia, the court did not draw a bright line between its minimum contacts inquiry and its fair play/substantial justice inquiry. Rather, the court noted:

“The ‘minimum contacts’ analysis of [International Shoe v. Washington (1945), 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95] is based on ‘traditional notions of fair play and substantial justice.’ [Citation.] Determining what constitutes fair play and substantial justice requires a delicate balancing of the interests of all those involved ***. While the burden that inconvenient litigation places on the defendant is always a primary concern [citation], the Court must also consider ‘the forum State’s interest in adjudicating the dispute, ... the plaintiff’s interest in obtaining convenient and effective relief ... the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies.’ ” [Citation.] Allied Towing, 642 F. Supp. at 1354-55.

The court further stated:

“PGW’s sole contact with Virginia was the series of events by which the *** by-product *** made its way to Virginia. [Citation.] The minimum contacts analysis mandated by the due process clause is not merely a quantitative inquiry, however. In determining whether the defendant’s contacts with the forum are such that the defendant should reasonably anticipate being haled into the-courts of that forum, the courts consider the nature or quality of the contacts as well as their number. [Citations.] ***
When the nonresident defendant places an inherently dangerous substance, such as the hazardous waste at issue here, into the stream of commerce, there is a substantial likelihood that the defendant will be called upon to defend in the state whose citizens have been injured or endangered by that instrumentality. Thus, ‘the nature of the product may well have a bearing upon the issue of minimum contact, with a lesser volume of inherently dangerous products constituting a more significant contact with the state than would a larger volume of products offering little or no hazard to the inhabitants of the state.’ [Citations.] ***
*** PGW sold this substance *** with the knowledge and expectation that it would be further distributed in the stream of interstate commerce. *** It is immaterial that PGW itself did not sell the substance to a Virginia purchaser or deliver it to Virginia. It is sufficient that PGW placed the substance into the stream of commerce, enabling the waste to pose a threat to the citizens of any state in which it might come to rest. *** The placement of an article, particularly a hazardous one, in the stream of interstate commerce, makes it foreseeable that one will be called upon to defend in the courts of a state with which one would otherwise have had no direct contact ***. [Citation.]
Having placed the substance in the stream of commerce, by selling it to an out-of-state manufacturer, PGW took no affirmative step to *** limit its exposure to suit in foreign jurisdictions. [Citation.] This might have been accomplished, for example, by restricting Sealand’s use of the product or by specifying *** a limited geographic market for Sealand’s final product. [Citation.] PGW’s failure to exercise any control over the destination of the substance *** made it possible for that substance to come to rest in any state.” Allied Towing, 642 F. Supp. at 1355-56.

In the final portion of its analysis, the court measured the burden foreign litigation would place on PGW against the reduced minimum contacts standards applicable to the case. It concluded that “[g]iven the *** weighty considerations militating in favor of a single proceeding ***, particularly the alleged hazard facing the residents of [the] area, and the minimal burden imposed on PGW by requiring it to defend *** [in] Virginia, *** it [is] both fair and reasonable to subject PGW to the court’s personal jurisdiction.” Allied Towing, 642 F. Supp. at 1357.

The analysis undertaken by the Allied Towing court is substantially unaffected by Asahi. In O’Neill v. Picillo (D.R.I. 1988), 682 F. Supp. 706, the same case as Violet, the State of Rhode Island sought recovery of the cost of cleaning up a hazardous waste site. The motion of two defendants, to whom the plaintiff had traced 36 fifty-five gallon drums at the site, to dismiss for lack of personal jurisdiction had been denied in Violet, i.e., before Asahi. One of those defendants renewed its motion post-trial. The court reconsidered its prior ruling in light of Asahi. The O’Neill court concluded:

“[T]he extra conduct seemingly required by [Asahi] *** is not necessarily required in cases of the kind presented here. It has long been acknowledged, and it was unanimously reaffirmed by *** Asahi, that ‘the determination of the reasonableness of the exercise of jurisdiction in each case’ will depend, not only on an evaluation of the defendant’s connection with the forum state, but also on an evaluation of ‘the interests of the forum state, and the plaintiff’s interest in obtaining relief.’ [Citation.] *** [I]t has generally been recognized[ ] that the nature and significance of [a] state’s interest may have a bearing on the nature and extent of the necessary contacts.” O’Neill, 682 F. Supp. at 717.

The court then repeated its findings in Violet that Rhode Island had compelling interests in the litigation, including a significant interest in redressing injuries occurring within its borders. O’Neill, 682 F. Supp. at 717-18.

This case involves the ultimate liability for injuries to an Illinois plaintiff allegedly caused by a chemical used in the manufacture of insecticides. Campbell admitted the use to which Phorate is put in its reply memorandum in support of its motion to dismiss. This is a judicial admission which is binding upon Campbell. (Trapkus v. Edstrom’s, Inc. (1986), 140 Ill. App. 3d 720, 489 N.E.2d 340.) In view of that fact and Aceto’s allegation in its amended third-party complaint that the Phorate is highly toxic, we believe that the analysis undertaken in Violet, Allied Towing and O’Neill applies to this case.

Like the States in Violet, O’Neill, and Allied Towing, Illinois has an undeniable and manifest interest in protecting the health and welfare of its citizens from hazardous substances such as the Phorate involved here. Illustrative of this interest are the Uniform Hazardous Substances Act of Illinois (Ill. Rev. Stat. 1987, ch. 111½, par. 251 et seq.) and the Illinois Pesticide Act (Ill. Rev. Stat. 1987, ch. 5, par. 801 et seq.). Like those States, it also has an interest in redressing injuries occurring within its borders in its courts.

Moreover, a broadened scope of foreseeability of harm must be ascribed to Campbell in manufacturing and selling a toxic substance such as Phorate. See Violet v. Picillo (D.R.I. 1985), 613 F. Supp. 1563, 1577 (defendants knew or should have known that they were dispatching hazardous chemical wastes into a stream of commerce broad enough to include any or all States).

In addition, Campbell, like the defendants in Allied Towing and Violet, took no affirmative steps to limit its exposure to suit in foreign jurisdictions by, for instance, limiting the number of States in which Aceto could market the Phorate or, more importantly in this case, the number of States through which Aceto could transport it.

In view of the foregoing, we believe that Campbell’s act of selling Phorate Technical to an American company, which created a possibility that the Phorate might cause injury in any State, including Illinois, when coupled with the fact that such injury did allegedly occur in Illinois, constitutes sufficient minimum contacts with Illinois to allow it to exercise personal jurisdiction over Campbell.

Moreover, we do not believe that World-Wide Volkswagen v. Woodson (1980), 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559, requires a contrary conclusion. In Woodson, the plaintiffs, who had purchased an automobile in the State of New York while they resided there, were involved in an accident in Oklahoma. They brought suit in an Oklahoma State court against, among others, the automobile’s regional distributor and its retailer seller. Neither the regional distributor nor retail seller did any business in Oklahoma, shipped or sold any products to or in that State, had an agent to receive process or advertised there. There was also no showing that any other product sold by the defendants had ever entered Oklahoma.

The Supreme Court barred the exercise of jurisdiction over the defendants by the Oklahoma courts. In so doing, it rejected the plaintiffs’ reliance on the foreseeability that the defendants’ product would cause injury in Oklahoma. The court stated that, although it was foreseeable that purchasers of defendants’ automobiles might take them to Oklahoma, “the mere ‘unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.’ ” (Woodson, 444 U.S. at 298, 62 L. Ed. 2d at 502, 100 S. Ct. at 567, citing Hanson v. Denckla (1958), 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 1298, 78 S. Ct. 1228, 1239-40.) The court also noted that, if foreseeability were the lone benchmark for personal jurisdiction, under the due process clause, every seller of chattels would, in effect, appoint the chattel as his agent for service of process, i.e., his amenability to suit would travel with the chattel. Rather than a foreseeability of a “likelihood that a product will find its way into a forum State,” the foreseeability which was important to a due process analysis was that the defendant’s conduct and connection with the forum State were such that he should reasonably anticipate being haled into court there. Finally, the court rejected the characterization of an automobile as a dangerous instrumentality as a basis for exercising jurisdiction over the defendants by holding that the concept had no bearing on the issue of jurisdiction. Woodson, 444 U.S. at 295-97, 62 L. Ed. 2d at 500-01, 100 S. Ct. at 566-67.

Although a seemingly insuperable obstacle to the Violet line of cases and thus our conclusion here, Woodson has not been treated as such by Federal district and appellate courts.

Woodson itself makes clear that jurisdiction may be asserted over the international and national distributors of a product, as opposed to its local sellers, if a sale of the product was not merely “an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in” the forum State. (Woodson, 444 U.S. at 297-98, 62 L. Ed. 2d at 501-02, 100 S. Ct. at 567; Violet v. Picillo (D.R.I. 1985), 613 F. Supp. 1563, 1575-76.) Furthermore, as the Violet court stated in finding that Woodson supported the exercise of jurisdiction over the defendants in that case:

“[T]he key factors justifying a different jurisdictional rule are two-fold.
First, unlike local merchants, such interstate distributors have an ‘interest in reaching as broad a market as’ possible [citation], and place their products into the stream of commerce with either the subjective intention [citation], or objective reason to know [citation], that their products will be sold ‘to a nation-wide market, that is, in any or all states’ [citation]. Thus, even if their ‘products were sold indirectly through importers or distributors with independent sales and marketing schemes’ [citation] * * * — independent parties whom the defendant distributors do not directly control [citation] — and even if their products are sold to an intermediary with ‘ “no indication whatsoever as to their ultimate destination” ’ [citation], the fact that these manufacturers or distributors place their products in a stream of commerce destined for sale through a broad interstate market, and reap the attendant benefits, renders them properly subject to suit in one of the states comprising that market.
The second important distinguishing factor is that, unlike local merchants serving a self-circumscribed market, who ‘ordinarily [have] no control over where the buyer takes the product after it is sold’ [citation], parties operating on a broad interstate scale can act ‘to limit the states in which [their products will] be sold’ [citation], and can thereby protect themselves against suit in an undesired forum.” Violet, 613 F. Supp. at 1576.

In view of the factors the Violet court found supporting a different rule of jurisdiction as to interstate manufacturers and distributors of a product, as opposed to its local sellers, we do not believe that Woodson prohibits the exercise of jurisdiction by Illinois over Campbell.

Implicitly addressing the Woodson court’s rejection of the dangerous instrumentality concept as a ground for exercising personal jurisdiction over a manufacturer or distributor, Violet further stated:

“[T]his is not a situation in which the product placed in the stream of commerce is an ordinary one. Rather, these defendants dispatched into that stream volatile and dangerous toxic substances — and did so without determining where these substances would come to rest. As other courts have recognized, and as common sense suggests, where a defendant deals in such inherently dangerous products, a lesser showing than is ordinarily required will support jurisdiction. [Citations.] This is especially so where, as here, the defendants engaged in heavily regulated activities, such that it is reasonable for them to foresee, given their chosen course of conduct, having to litigate in a distant forum.” Violet, 613 F. Supp. at 1577-78.

Citing Woodson and a Fourth Circuit case, the defendant in Allied Towing contended that the expectation that its product might come to rest in any State as a result of its failure to exercise any control over its destination was an insufficient basis for exercising jurisdiction over it. The court rejected this argument by stating:

“Neither case, however, involved an inherently dangerous instrumentality. When an inherently dangerous instrumentality is released in commerce, and *** causes tortious injury in a foreign forum, the threshold for establishing jurisdiction is less demanding. [Citations.] Similarly, the scope of ‘foreseeability’ broadens when the enterprise giving rise to the action is subject to pervasive federal regulation.” Allied Towing Corp. v. Great Eastern Petroleum Corp. (E.D. Va. 1986), 642 F. Supp. 1339, 1356-57.

In O’Neill, the court found that Rhode Island’s interests in adjudicating the suit were enhanced by the fact that the case involved inherently dangerous toxic substances rather than ordinary products. In support, the court, like plaintiff here, cited, inter alia, Justice Stevens’ observation in Asahi that the determination whether a defendant has purposefully availed himself of a forum State’s market is affected by the volume, value and hazardous character of its product. (Asahi Metal Industry Co. v. Superior Court (1987), 480 U.S. 102, 122, 94 L. Ed. 2d 92, 111, 107 S. Ct. 1026, 1038 (Stevens, J., concurring, joined by White and Blackmun, JJ.).) The court lastly held, inter alia, that the fact the defendants operated in a nationally regulated industry also increased the significance of the contact with the forum. O’Neill v. Picillo (D.R.I. 1988), 682 F. Supp. 706, 718.

Similarly, in Morris v. SSE, Inc. (11th Cir. 1988), 843 F.2d 489, the court, relying upon Justice Stevens’ reference in Asahi to hazardous products, allowed the exercise of jurisdiction over the defendant based, in part, on the fact that the case involved a highly hazardous product, i.e., a device used in the hazardous activity of skydiving. See also Poyner v. Erma Werke GMBH (6th Cir. 1980), 618 F.2d 1186, 1192 (injuries caused by inherently dangerous articles imported through independent distributors fall within class of litigation which a forum State has a deep interest in adjudicating); Chattanooga Corp. v. Klingler (E.D. Tenn. 1981), 528 F. Supp. 372, 378 (requisite contacts might be minimized if the plaintiff’s claim involves the placing of a dangerous instrumentality in commerce), rev’d on other grounds (6th Cir. 1983), 704 F.2d 903.

These cases thus reveal that, notwithstanding the dictum in Woodson that the dangerous instrumentality concept is irrelevant to the issue of jurisdiction, the courts still consider the dangerousness or hazardous nature of a product in determining the issue of jurisdiction. The continuing validity of these cases and Justice Stevens’ reliance in Asahi on the hazardous nature of a product cast doubt upon the weight to be given the rejection of the dangerous instrumentality concept in a footnote in Woodson. (But see Bodine’s Inc. v. Sunny-O, Inc. (N.D. Ill. 1980), 494 F. Supp. 1279, 1284 (stating that Woodson expressly rejected the proposition that different rules of jurisdiction obtain in cases involving dangerous products).) Because this case is more analogous to the Violet-Allied To wing-0’Neill line of cases than to Woodson, we do not find that Woodson requires us to reject the dangerous instrumentality concept as a factor in the minimum contacts determination.

Moreover, we believe that the requirement that the product be placed in the stream of commerce of the forum State is also satisfied in this case. We concede that the Phorate was not placed in the “stream of commerce” of Illinois as that phrase is traditionally used in cases such as this. That is, it was not destined for sale to Illinois consumers. (See World-Wide Volkswagen v. Woodson (1980), 444 U.S. 286, 297-98, 62 L. Ed. 2d 490, 501-02, 100 S. Ct. 559, 567-68; Asahi Metal Industry Co. v. Superior Court (1987), 480 U.S. 102, 120, 94 L. Ed. 2d 92, 109-10, 107 S. Ct. 1026, 1037 (opinion of Brennan, J., joined by White, Marshall and Blackmun, JJ.).) However, just as the hazardous waste products dumped in Rhode Island in Violet and O’Neill were considered in the stream of commerce of that State, we believe that the Phorate involved here was sufficiently within the stream of commerce of Illinois, although not destined for sale or consumption here.

In Violet, the court stated that, when viewed in the context of a hazardous waste disposal industry permeated by national problems of improper dumping, “each defendant’s decision to send its toxic wastes on a virtual one-way journey to anywhere [represented] a decision to avail itself of the benefits of a potentially boundless national disposal market.” (Violet v. Picillo (D.R.I. 1985), 613 F. Supp. 1563, 1577.) Similarly here, when viewed in the context of a nationwide hazardous products industry and the use which that industry, like many industries, makes of the interstate transportation system, as revealed in this case, Campbell’s decision to sell Phorate to an American company constituted a decision to avail itself of a potentially boundless national market for its product. As such, the decision of Aceto’s agent to transport the Phorate manufactured by Campbell through Illinois on its way to Iowa created a sufficient contact between Campbell and Illinois to allow the State to exercise jurisdiction over Campbell. The fact that Aceto, not Campbell, caused the Phorate which injured the plaintiff to be brought into Illinois does not, under Allied Towing, prevent the exercise of jurisdiction over Campbell by Illinois.

Having determined that Campbell has sufficient minimum contacts with Illinois to allow Illinois to exercise personal jurisdiction over it, we must make the second determination in the due process analysis of Allied Towing, Violet and O’Neill, as affected by Asahi. That is, we must determine whether Illinois can exercise personal jurisdiction over Campbell which comports with traditional notions of fair play and substantial justice. To do so, we must consider the burden on Campbell, Illinois’ interest in adjudicating the dispute, Aceto’s interest in obtaining convenient and effective relief, the international judicial system’s interest in the most efficient resolution of controversies and the procedural and substantive policies of other nations whose interests are affected by the exercise of jurisdiction by Illinois. Asahi Metal Industry Co. v. Superior Court (1987), 480 U.S. 102, 114, 94 L. Ed. 2d 92, 105-06,107 S. Ct. 1026,1033-34.

Subjecting Campbell to the personal jurisdiction of Illinois would impose upon it the severe burden of traversing the vast distance between England and Illinois and subjecting its dispute with Aceto to a foreign nation’s judicial system. This unique burden has “significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders.” (Asahi, 480 U.S. at 114, 94 L. Ed. 2d at 105, 107 S. Ct. at 1034.) Moreover, we do not agree with Aceto’s bald assertion that our judicial system is “not really” foreign to Campbell. Whether based on the common language of England and the United States or the common law heritage of both countries, we find the assertion meritless.

Unlike the situation in Asahi, and as reflected in our minimum contacts determination, Illinois has more than a slight interest in asserting jurisdiction over Campbell, given the context of this case. On balance, however, that interest and Aceto’s interests do not outweigh the burden upon Campbell.

Unlike the situation in Asahi, the main plaintiff’s claim is still pending here; however, this case, like Asahi, does not involve a dispute over safety standards, in which Illinois has a legitimate interest, but merely a third-party dispute over liability to the main plaintiff. Moreover, as in Asahi, it is, at best, uncertain whether Illinois law will govern Campbell’s liability for contribution to Aceto, i.e., whether the most significant contacts test calls for application of Illinois law to Aceto’s contribution claim. (See Mech v. Pullman Standard (1985), 136 Ill. App. 3d 939, 484 N.E.2d 776.) Illinois, like the States in Violet, O’Neill and Allied Towing, has an interest in adjudicating all claims arising from plaintiff’s injuries in one proceeding. This interest militates in favor of exercising its jurisdiction over Campbell.

As in Asahi, however, no part of the transaction upon which Aceto bases its claim took place in Illinois. Unlike the Asahi situation, Campbell shipped its products to the United States. Also unlike Asahi, we believe that Aceto, an American company, is entitled to a presumption that it would be more convenient for it to litigate its claim in Illinois rather than England. However, we must conclude from Aceto’s failure to allege the contrary in its third-party complaint that it is not a citizen of Illinois. This fact considerably diminishes Illinois’ interests in this dispute. (Asahi, 480 U.S. at 105, 94 L. Ed. 2d at 106, 107 S. Ct. at 1034.) Finally, we may assume that, if subjected to liability in Illinois, Aceto will, as a purchaser of Campbell’s products, pressure Campbell to cease unsafe practices in the manufacture, containment and label-ling of those products. These pressures will have a similar effect to the deterrence to such practices which would result from requiring Campbell to defend itself in Illinois against allegations of unsafe practices in the manufacture, containment and labelling of its product. See Asahi, 480 U.S. at 115, 94 L. Ed. 2d at 106, 107 S. Ct. at 1034.

Finally, whatever the procedural and substantive interests of Great Britain in Illinois’ exercise of jurisdiction over Campbell, those interests and the Federal government’s interests in its foreign relations require us to exercise “[gjreat care and reserve” in extending personal jurisdiction over Campbell. (Asahi, 480 U.S. at 115, 94 L. Ed. 2d at 106, 107 S. Ct. at 1034-35.) As such, we cannot conclude that the interests of Illinois in exercising jurisdiction in this case, albeit greater than the similar interests of California in Asahi, are sufficient to outweigh the serious burdens that we would place upon Campbell. In sum, the exercise by Illinois of in personam jurisdiction over Campbell would not comport with traditional notions of fair play and substantial justice.

For all of the foregoing reasons, the order dismissing Aceto’s amended third-party complaint for contribution from Campbell is affirmed.

Affirmed.

McNAMARA and RIZZI, JJ., concur.

       Justice McNamara participated in this opinion prior to his assignment to the sixth division.


author: JUSTICE McMORROW

text:
    AL CURTIS ROSS, d/b/a Ross Liquors, Plaintiff-Appellant, v. WALTER S. KOZUBOWSKI, City Clerk of the City of Chicago, et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—87—1764
    Opinion filed April 20, 1989.

      Clarence L. Burch, of Burch & Delgado, of Chicago, for appellant.
    Michael Levinson, of Board of Election Commissioners, and Judson H. Miner, Corporation Counsel, both of Chicago, for appellees.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff, A1 Curtis Ross, d/b/a Ross Liquors, appeals from the orders of the trial court dismissing his “petition to void [a] local referendum” and denying his motion for leave to file an amended petition. We affirm.

Plaintiff is the owner and proprietor of Ross Liquors, a retail liquor business located in the 36th precinct of the 5th ward in Chicago. It is undisputed that in December 1986 and January 1987, defendants Geraldine Harris, Albert Welles, Ethel Welles and Charles Taylor circulated copies of a petition within the 36th precinct requesting to have placed on the ballot of the April 7, 1987, election the following local liquor option proposition:

“Shall the sale at retail of alcoholic liquor be prohibited in this 36th Precinct of the 5th Ward of the City of Chicago?”

On January 7, 1987, defendant, Walter S. Kozubowski (the city clerk) certified to the defendant board of election commissioners (the board) that a petition consisting of 19 sheets purporting to be signed by at least 25% of the legal voters of the 36th precinct had been filed with his office on that date requesting that the above-quoted proposition be submitted to the voters of the 36th precinct in the April 7 election. Notice of the election was given by publication. According to the statement of official results, the proposition was passed by a 59% majority of the voters who voted in the election.

On May 7, 1987, plaintiff filed his four-count petition to void the referendum (the complaint). In counts I and II, respectively, plaintiff alleged that the liquor option petition contained an incorrect spelling of his name and misrepresented to the voters that there were two liquor licensees in the precinct when, in fact, he was the only such licensee. Count III alleged fraud and electioneering in favor of the proposition by defendant Geraldine Harris, who worked as an election judge in the 36th precinct polling place on the day of the election. In count IV, plaintiff alleged that due process required that he receive actual notice of the election and that section 9 — 5 of the Liquor Control Act of 1934 (the Act) (Ill. Rev. Stat. 1985, ch. 43, par. 170), providing for notice by publication only, is unconstitutional. In each count of the complaint, plaintiff requested that the liquor option election be declared null and void. He also sought a temporary restraining order and a temporary and permanent injunction enjoining enforcement of the election results.

Following a hearing on May 18, 1987, the trial court granted defendants’ motion to dismiss. The court found (1) that counts I and II were not filed within the time prescribed by the Act (Ill. Rev. Stat. 1985, ch. 43, par. 169); (2) that, irrespective of the court’s findings with respect to the timeliness of counts I and II, the liquor licensee information contained in the petition was in substantial compliance with the law; (3) that, as a matter of law, the allegations of count III were too general to state a cause of action to set aside the election results; (4) that plaintiff lacked standing to contest the liquor option election; and (5) that plaintiff was not entitled to actual notice of the election. The trial court granted plaintiff leave to file a motion to amend the complaint to incorporate section 23 — 24 of the Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 23 — 24), but denied him leave to add electors of the 36th precinct as additional petitioners and dismissed the City of Chicago and the city clerk as defendants.

Following a hearing on June 3, 1987, the trial court denied plaintiff’s motion for reconsideration. The court entered an order upholding the order of May 18 and denied plaintiff’s motion to amend his complaint on the ground that it lacked jurisdiction to permit the filing of an amendment after the expiration of the statutory time period. This appeal followed.

Opinion

We first note that although the issue was raised in his notice of appeal, plaintiff makes no argument in his brief as to the propriety of the dismissal of counts I and II of his complaint. As noted above, the trial court dismissed those counts on the dual grounds that the petition for submission of the liquor option proposition was in substantial compliance with the law and that, in any event, those counts were not timely filed in accordance with section 9 — 4 of the Act. That section provides in pertinent part:

“Any five legal voters or any affected licensee of any *** precinct in which a proposed election is about to be held *** within any time up to SO days immediately prior to the date of such proposed election *** may contest the validity of the petitions for such election by filing a verified petition in the Circuit Court *** setting forth the grounds for contesting the validity of such petitions.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 43, par. 169.)

The legislative purpose of this time requirement is to provide for a determination of the validity of the petition before the labor and expense of the election and to prevent a challenger from gambling on the outcome of the election. (Quarles v. Kozubowski (1987), 154 Ill. App. 3d 325, 507 N.E.2d 103; Ye Olde Shamrock, Ltd. v. Marcin (1981), 95 Ill. App. 3d 953, 420 N.E.2d 434; Liquor Hut, Inc. v. Marcin (1980), 84 Ill. App. 3d 718, 406 N.E.2d 139; Robertson v. Marcin (1977), 50 Ill. App. 3d 390, 365 N.E.2d 709; Schultz v. Marcin (1972), 8 Ill. App. 3d 91, 289 N.E.2d 286; Havlik v. Marcin (1971), 132 Ill. App. 2d 532, 270 N.E.2d 189.) Inasmuch as plaintiff’s complaint was not filed until 30 days after the election, it is clear that those counts challenging the validity of the petitions to place the liquor option proposition on the ballot were properly dismissed as being untimely filed.

Plaintiff has not, however, abandoned his contention that he was denied due process because he was not given actual notice of the election. He argued in the trial court that it is illogical to rule that he was obligated to contest the validity of the local option petition within 30 days prior to an election of which he had no actual notice. On appeal, plaintiff acknowledges that publication is the only form of notice called for by the Liquor Control Act (Ill. Rev. Stat. 1985, ch. 43, par. 170), and that Illinois courts have consistently held that actual notice is not required. He nevertheless posits that “[t]his case law must fall and give way to the Federal concept of procedural due process which requires that a person be personally served with process where a deprivation of his property rights is sought.”

The fatal flaw in plaintiff’s argument is its premise, i.e., that the loss of a liquor license constitutes the deprivation of a constitutionally protected right. For more than 80 years, the courts of this State have rejected arguments similar to plaintiff’s and have steadfastly held that a license to sell alcoholic beverages is not a right but, rather, a privilege, subject to regulation under the police powers of the State, and that, as such, it is not afforded due process protection. A reverse chronological review of Illinois case law so holding includes the following decisions: Black Knight Restaurant, Inc. v. City of Oak Forest (1987), 159 Ill. App. 3d 1016, 513 N.E.2d 109; Two Kats, Inc. v. Village of Chicago Ridge (1986), 147 Ill. App. 3d 440, 497 N.E.2d 1314; Duncan v. Marcin (1980), 82 Ill. App. 3d 963, 403 N.E.2d 653; Huguley v. Marcin (1976), 39 Ill. App. 3d 230, 349 N.E.2d 564; Walker v. Marcin (1974), 24 Ill. App. 3d 791, 321 N.E.2d 406; Malito v. Marcin (1973), 14 Ill. App. 3d 658, 303 N.E.2d 262; People v. Smith (1938), 368 Ill. 328, 14 N.E.2d 82; O’Connor v. Rathje (1938), 368 Ill. 83, 12 N.E.2d 878; Great Atlantic & Pacific Tea Co. v. Mayor & Commissioners (1937), 367 Ill. 310, 11 N.E.2d 388; People v. McBride (1908), 234 Ill. 146, 84 N.E. 865.

Moreover, several of these decisions have specifically addressed and upheld the constitutionality of the Act, including the provision now codified as section 9 — 5. (See People v. McBride, 234 Ill. 146, 84 N.E. 865; People v. Smith, 368 Ill. 328, 14 N.E .2d 82; O’Connor v. Rathje, 368 Ill. 83, 12 N.E.2d 878; Huguley v. Marcin, 39 Ill. App. 3d 230, 349 N.E .2d 564; Malito v. Marcin, 14 Ill. App. 3d 658, 303 N.E.2d 262.) We decline to depart from an 80-year-old line of jurisprudence and therefore hold that plaintiff was not entitled to actual notice of the election and that the lack of actual notice did not constitute a denial of due process.

We turn then to plaintiff’s correlative contentions that the trial court (1) erred in dismissing count III as being legally insufficient for lack of factual specificity and (2) abused its discretion in denying him leave to file an amended complaint. We consider first the sufficiency of the complaint before us.

Although the pleadings in an election contest suit need not strictly comply with the technical rules applicable to other civil actions (Cummings v. Marcin (1973), 16 Ill. App. 3d 18, 305 N.E .2d 606), they must allege specific facts which, if proved, would show that the irregularities complained of changed the results of the election or otherwise imposed a duty on the court to declare the election void (Zahray v. Emricson (1962), 25 Ill. 2d 121, 182 N.E.2d 756; Cummings v. Marcin, 16 Ill. App. 3d 18, 305 N.E .2d 606; Hall v. Marcin (1977), 49 Ill. App. 3d 528, 364 N.E.2d 549; Cooper v. Marcin (1976), 44 Ill. App. 3d 918, 358 N.E.2d 1218). In the absence of such allegations, the complaint “assumes the proportions of an exploratory process to which neither the courts nor our elected officials should be subjected.” Zahray, 25 Ill. 2d at 125; Vanderbilt v. Marcin (1970), 127 Ill. App. 2d 192, 262 N.E .2d 42.

Plaintiff argues that count III contains sufficient factual allegations of fraud and electioneering to state a cause of action to contest the results of the election. We disagree.

Count III merely alleges that defendant Geraldine Harris was an election judge in the 36th precinct polling place; that “based on information and belief, Harris did solicit votes in favor of voting the precinct dry and engaged in electioneering at the polling place ***; [tjhat as a result of the fraud committed [in the circulation of the petitions, as alleged in counts I and II] and the soliciting of votes in favor of the proposition, the defendants violated the Illinois Constitution which provides [under article III, section 3, of the Illinois Constitution (Ill. Const. 1970, art. III, §3)], that ‘[a]ll elections shall be free and equal.’ ”

It has been held that the provision in the Illinois Constitution relating to a free and equal election does not guarantee an election devoid of all error. The Constitution requires only “that each voter have the opportunity to cast his or her vote without any restraint and that his or her vote have the same influence as the vote of any other voter.” Goree v. Lavelle (1988), 169 Ill. App. 3d 696, 699, 523 N.E.2d 1078, citing People v. Deatherage (1948), 401 Ill. 25, 81 N.E.2d 419.

The complaint before us does not allege any facts to support a conclusion that any irregularities occurred, the number of votes affected by those irregularities or that had any such irregularities not occurred, the result of the election would have been changed, i.e., that the proposition would have been defeated. Count III consists only of conclusions and, thus, was not sufficient to state a cause of action to contest the results of the election on the basis of fraud. See Goree v. Lavelle, 169 Ill. App. 3d 696, 523 N.E.2d 1078; Duncan v. Marcin (1980), 82 Ill. App. 3d 963, 403 N.E.2d 653; Cooper v. Marcin (1976), 44 Ill. App. 3d 918, 358 N.E.2d 1218; Cummings v. Marcin (1973), 16 Ill. App. 3d 18, 305 N.E.2d 606; Vanderbilt v. Marcin (1970), 127 Ill. App. 2d 192, 262 N.E.2d 42.

Apart from the issue of the sufficiency of the complaint, however, is the question whether the trial court had jurisdiction to entertain it in the first instance. A proceeding to contest an election is a. creature of statute and no right exists, except as provided by statute, to bring such an action. (Young v. Mikva (1977), 66 Ill. 2d 579, 363 N.E.2d 851.) Correspondingly, absent statutory authority, courts are without jurisdiction to hear or determine an action to contest an election. (People v. Jenner (1919), 214 Ill. App. 321.) An election contest must be brought in the designated forum, at the proper time, in the manner provided by statute and by the person or persons possessing the qualifications specified by statute. Harding v. Albert (1940), 373 Ill. 94, 25 N.E.2d 32.

Defendants argue, inter alia, that the trial court properly dismissed plaintiff’s complaint because plaintiff lacked standing, under section 9 — 19 of the Liquor Control Act (Ill. Rev. Stat. 1985, ch. 43, par. 182), to challenge the election. Section 9 — 19 provides in pertinent part:

“Any 5 legal voters of any *** precinct in which an election has been held as provided for in this Act, may within 10 days after the canvass of the returns of such election *** contest the validity of such election by filing a verified petition in the Cir-cult Court *** setting forth the grounds for the contest.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 43, par. 182.)

The statutory requirements of section 9 — 19 are jurisdictional (People v. Jenner (1919), 214 Ill. App. 321) and unless they are complied with, the trial court acquires no jurisdiction to hear or determine the cause (Schultz v. Marcin (1972), 8 Ill. App. 3d 91, 289 N.E.2d 286; Village of Hinsdale v. Du Page County Court (1935), 281 Ill. App. 571). As defendants point out, the complaint before us was not brought by five legal voters of the precinct and it was not filed within 10 days after the canvass of the results of the election. However, we are in agreement with that portion of plaintiff’s argument that section 9 — 19 does not apply in the first instance because the complaint does not contest the validity of the election.

An action to contest the validity of an election is not the same as one to contest the results of an election. The difference was discussed in Village of Hinsdale v. DuPage County Court (1935), 281 Ill. App. 571, wherein the court explained that an action to contest the validity of an election questions .the legality of the election itself, whereas an action contesting the results of an election charges irregularities which are alleged to have changed the outcome of it. Specifically, the court stated:

“In a contest of the validity of an election the ultimate issue is whether or not the election was valid or invalid, irrespective of the result of the votes cast. A contest of the results of an election assumes that there has been a valid election, but that for various reasons the legal ballots cast were improperly counted or that the result reached by the canvassing board was erroneous.” 281 Ill. App. at 583.

Similarly, in Carpenter v. Kozubowski (1987), 157 Ill. App. 3d 127, 509 N.E.2d 1309, on which plaintiff relies, the court held that the trial court erroneously applied section 9 — 19 in ruling that it lacked jurisdiction to entertain the counts in plaintiffs’ complaint alleging voting irregularities because they were not filed within the 10 days prescribed by that section. Quoting the passage from Village of Hinsdale set forth above, the Carpenter court stated that an action under section 9 — 19 does not relate to the results of an election but, rather, pertains to matters such as whether the election was conducted on the wrong date, in the wrong jurisdiction or in violation of a court order.

Count III of plaintiff’s complaint does not question the legality of the election but, rather, alleges irregularities, i.e., electioneering by defendant Geraldine Harris, in the voting process. Thus, section 9 — 19 is inapplicable to an action such as the one before us, which purports to challenge the results, as opposed to the validity, of the liquor option election at issue.

Whereas section 9 — 4 of the Liquor Control Act (Ill. Rev. Stat. 1985, ch. 43, par. 169) provides the procedures by which to contest the validity of the petitions for a local option referendum, and section 9 — 19 governs actions to contest the validity, or legality, of the election itself, the appropriate statutory provision under which to contest the results of a liquor option election is section 23 — 24 of the Election Code. That section provides in relevant part:

“In the case of *** all questions of public policy submitted to the voters of any political subdivision or district, any 5 electors *** of the political subdivision *** may contest the results of any such election by filing a written statement in the circuit court within 30 days after the result of the election shall have been determined, in like form as in other cases of contested elections in the circuit court ***.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 46, par. 23 — 24.)

Only the results of an election as determined by the returns or count of ballots, and not the validity of the election itself, may be contested under this paragraph pertaining to the contests of the results of public referenda. Coalition for Political Honesty v. State Board of Elections (1976), 65 Ill. 2d 453, 359 N.E.2d 138; Goree v. Lavelle (1988), 169 Ill. App. 3d 696, 523 N.E.2d 1078.

On May 18, 1987, the date of the hearing on plaintiff’s complaint, plaintiff filed a motion to amend the complaint to incorporate section 23 — 24 of the Election Code. The trial court allowed him leave to file a motion to incorporate section 23 — 24 but denied him leave to add five voters of the 36th precinct as additional petitioners. However, at the hearing on defendant’s motion for reconsideration, on June 3, 1987, the court denied plaintiff’s motion on the ground that it had determined it lacked jurisdiction to allow any amendment because the statutory time period, whether 10 days under section 9 — 19 of the Act or 30 days under section 23 — 23 of the Code, had expired.

Plaintiff argues that, because the motion to amend was filed while the petition for reconsideration of the May 18 order of dismissal was pending, the court had jurisdiction to allow him to file an amended complaint. He further argues that the court abused its discretion in denying that motion.

In this regard, we initially note that parties do not have an absolute right to amend pleadings; rather, the decision to allow amendments rests within the sound discretion of the trial court. (Has siepen v. Marcin (1974), 22 Ill. App. 3d 433, 318 N.E.2d 422.) As the court in Village of Hinsdale v. Du Page County Court (1935), 281 Ill. App. 571, stated:

“The rule is *** that where a petition to contest an election is properly verified and filed within the time prescribed by the statute and it sets forth one or more sufficient grounds of contest, amendments to the petition may be allowed, even after the expiration of the time within which the original petition was required to be filed, but where the original petition *** does not set forth one or more sufficient grounds for contest, no. amendments to the petition filed after the expiration of the time within which the original petition was required to be filed will confer jurisdiction. In other words a legally sufficient petition must be filed within the time prescribed by the statute in order to confer jurisdiction upon the court to thereafter hear and determine the cause.” 281 Ill. App. at 588.

We have already determined that the trial court correctly ruled that counts I and II were not filed within the time prescribed by statute (which necessarily rendered the court without jurisdiction to consider them); that count III was insufficient as a matter of law to state a cause of action for fraud; and that the allegation in count IV, that plaintiff was entitled to actual notice of the election, was devoid of legal merit. For these reasons, plaintiff had failed to file a “legally sufficient petition” within the 30 days prescribed by section 23 — 24. Consequently, the trial court did not abuse its discretion in denying plaintiff’s motion to amend.

Additionally, section 9 — 19 of the Liquor Control Act and section 23 — 24 of the Election Code both require that an action to contest either the validity or results of a local option election be brought by five legal voters of the political subdivision in which the election was held. Plaintiff neither alleged in his complaint nor asserted to the trial court or to this court that he is a registered voter of the 36th precinct. Rather, plaintiff argued that Pinkerton v. Marcin (1979), 67 Ill. App. 3d 628, 385 N.E.2d 1, grants him, a liquor licensee, standing “to challenge the validity (or results) of a local option petition.” Plaintiff alternatively asserted that if he were allowed to amend the complaint to incorporate section 23 — 24, he intended to challenge the constitutionality of the requirement that a liquor option election contest be brought by five legal voters on the ground that it resulted in denying him any remedy for the deprivation of a valuable property right. Plaintiff’s reliance on Pinkerton v. Marcin on the question of standing to challenge the results of the election is misplaced. In Pinkerton, the court held, in a supplemental opinion on denial of rehearing, that, contrary to its position in the original opinion, the plaintiff-liquor licensee did have standing under section 9 — 4 of the Liquor Control Act (Ill. Rev. Stat. 1977, ch. 43, par. 169) to challenge the validity of the proposition set forth in the petition and subsequently placed on the ballot notwithstanding that at the time of the election at issue, section 9 — 4 had not yet been amended to confer standing to “affected licensees” as does the current version. Pinkerton did not involve an action to contest the results of an election under section 23 — 24 of the Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 23 — 24) and therefore provides no support for the proposition that a liquor licensee has standing “to challenge the *** results *** of a local option [election].”

Here, plaintiff sought, more than 40 days after the results of the election were announced, to “amend” his legally insufficient original complaint so as to institute an election contest which he lacked standing to bring under the statutory provision he sought to incorporate, and which he maintains is at least partially unconstitutional. In other words, plaintiff sought to file an entirely new complaint beyond the time limit prescribed by a statute under which he did not have standing. On the basis of the authorities cited herein, it is our view that the trial court correctly determined that it lacked jurisdiction to allow any such “amendment,” and we therefore affirm the orders of the court dismissing plaintiff’s complaint with prejudice.

For the reasons stated, the order of the trial court dismissing plaintiff’s petition is affirmed.

Affirmed.

LINN and JOHNSON, JJ., concur.


author: JUSTICE LORENZ

text:
    SAMPSON STEWART, Plaintiff-Appellant, v. JUAN ALVAREZ, Defendant-Appellee.
    First District (5th Division)
    No. 1—87—1443
    Opinion filed April 21, 1989.

      James R. Vassilos & Associates, of Chicago, for appellant.
    Gerald J. Shine and James F. Flanagan, both of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Sampson Stewart, a Chicago Transit Authority (CTA) bus operator, filed an action against defendant, Juan Alvarez, for injuries sustained when plaintiff’s CTA bus collided with defendant’s automobile. Following a jury trial, judgment was awarded to defendant. Plaintiff appealed, and we now affirm.

It is undisputed that, at approximately noon on August 29, 1978, plaintiff’s northbound CTA bus struck defendant’s automobile at the intersection of Halsted and 39th Streets in Chicago. The accident occurred when defendant, traveling south on Halsted Street, attempted to complete a left turn, east, onto 39th Street, across the path of the CTA bus.

At trial, plaintiff testified that defendant caused the collision when he “darted out in front” of the bus. The impact in turn caused a “pin” in the operator’s seat to “slip out.” Plaintiff was injured when the seat collapsed. Plaintiff testified that the pin had never fallen out of the seat in the past, but he had heard of it happening to other drivers. He admitted that the pin could fall out from normal wear and tear and that the bus he drove that day was not new.

Defendant testified that he proceeded into the intersection, stopped, and waited to turn left with his directional signals indicating that intent. The collision occurred when, as defendant began to make the turn, he stopped again for a pedestrian. Defendant admitted that while nothing prevented him from seeing the pedestrian, he could not identify her.

Plaintiff denied seeing the pedestrian.

Opinion

We consider, in turn, each of the points raised by plaintiff on appeal.

Plaintiff first raises four issues regarding examination of the venire. Plaintiff initially contends the court improperly limited the questioning of two veniremen. In one instance, the court precluded plaintiff’s counsel from asking a venireman whether he received insurance proceeds in conjunction with a traffic accident claim. In the other instance, the court admonished counsel against asking a venireman whether he would be willing to stay for the duration of the trial. Second, plaintiff contends defendant’s counsel’s remark during voir dire that the jury alone decided the fairness of a doctor’s bill, if submitted as evidence, was improper as implying the jury was free to reject properly admitted exhibits. Third, plaintiff states the court improperly interjected remarks during plaintiff’s counsel’s questioning of two veniremen. Specifically, after plaintiff’s counsel asked whether the veniremen could give a “substantial award” if the case was proved, the court cautioned that awards must be supported by evidence. Finally, plaintiff argues that it was improper to permit, as a juror, an individual who was a party to a child support matter pending in the circuit court.

Generally, Supreme Court Rule 234 permits trial courts broad discretion in conducting voir dire proceedings, and a verdict may be successfully challenged on appeal only where abuse of that discretion precludes an impartial jury. (107 Ill. 2d R. 234; Kingston v. Turner (1987), 115 Ill. 2d 445, 505 N.E.2d 320.) After considering each of the above contentions, we do not agree that any abuse of discretion occurred below.

First, the court’s preclusion of plaintiff’s counsel’s irrelevant questions concerning insurance or willingness to sit through a lengthy trial was unquestionably within the trial court’s discretion. Second, as to defendant’s counsel’s remark concerning the jury’s consideration of the fairness of a hypothetical doctor’s bill, the record discloses that the court immediately clarified counsel by telling the panel that if such a bill was paid and admitted as evidence, it would speak for itself. The record further reflects that the court’s interjections related to evidentiary support for awards, rather than improper, were necessitated by plaintiff’s counsel’s emphasis regarding the amount of potential award. Last, we need not consider the merits of the argument that one juror was involved in a pending matter as the record reveals that, knowing of that fact, no objection was raised by plaintiff’s counsel. See Kingston, 115 Ill. 2d 445, 505 N.E.2d 320.

Plaintiff’s next contentions relate to plaintiff’s counsel’s questioning of defendant as an adverse witness.

Soon after questioning began, the court interrupted the examination to remind the jurors that they were permitted to take notes during testimony. Plaintiff argues that interruption was prejudicial.

Plaintiff also contends the court committed error in ruling on two objections during defendant’s testimony. Plaintiff first draws attention to questions regarding the elapsed time between defendant’s stop for the pedestrian and the collision. The following testimony is relevant:

“Q. Would it be correct to say that it could have been probably less than a second between the time that you turned and stopped and the impact with the bus?
A. I cannot answer that.
Q. Okay. Have you ever given a contrary statement than that you could not answer that?
A. No.
Q. Let me refresh your recollection. Do you recall being in January 15 [sic] of this year in the office of the attorney who is hired to represent you, do you recall being at his office?
A. Yes.
* * *
Q. And do you recall at that time being asked this question: ‘And how much time went by between the second time you stopped and the time the bus that [sic] hit you?’
* * *
Q. And do you recall the interpreter saying, ‘Don’t remember’?
A. Yes.
Q. Then do you recall another question: ‘Could it have been less than a second?’ And the answer ‘probably’[?]
A. Yes.”

The court stated that the above did not constitute successful impeachment of defendant. Plaintiff contends that ruling was erroneous.

Plaintiff further asserts the court committed prejudicial error in sustaining an objection to counsel’s question as to whether defendant was familiar with law prohibiting left turps in front of oncoming traffic.

We find no merit to any of the above arguments. The record indicates no prejudicial effect from the court’s comments regarding note taking by the jury. Further, we agree with the trial court that defendant’s deposition and trial testimony were not inconsistent concerning the elapsed time between defendant’s stop and the collision. In his deposition, defendant initially answered he could not remember how much time elapsed and answered “probably” only in response to further speculation as to whether it “could” have been less than a second. At trial, when asked again how much time elapsed, defendant repeated his same initial response that he was unable to give an answer. We consider defendant’s testimony substantially consistent. Moreover, even if such constituted successful impeachment, that fact affords no reason to disturb the judgment below, as impeachment relates solely to witness credibility, a matter resolved exclusively by the jury. (See Perkins v. Culver (1971), 131 Ill. App. 2d 881, 269 N.E.2d 333.) Finally, the trial court properly sustained objection to the question implying an absolute prohibition on left turns in front of oncoming traffic as such left turns are obviously proper where they can be completed safely. See Ill. Rev. Stat. 1985, ch. 95½, par. 11 — 902.

Plaintiff next argues the trial court abused its discretion in permitting defendant’s counsel to impeach plaintiff’s testimony regarding two collateral matters: the number of passengers on the bus at the time of the collision and who drove plaintiff to the hospital after the accident.

We decline to consider the merits of that argument because, even if we determine that counsel’s cross-examination included impeachment relating to collateral matters, after reviewing the record in its entirety, we cannot conclude that such questioning was harmful or provides a basis for reversal. See Hengels v. Gilski (1984), 127 Ill. App. 3d 894, 469 N.E.2d 708.

Plaintiff also contends the trial court erred in permitting defendant’s counsel to ask plaintiff whether the driver’s seat pin could slip out because of wear and tear. Plaintiff argues that that question required scientific knowledge beyond the scope of plaintiff’s knowledge as an occurrence witness.

We do not agree. After carefully reviewing plaintiff’s testimony, we conclude that, rather than requiring special knowledge, the question required plaintiff only to relate his general observation of the pin mechanism from his perspective as an experienced bus operator. See Baggett v. Ashland Oil & Refining Co. (1968), 92 Ill. App. 2d 433, 236 N.E.2d 243.

Plaintiff further complains that the trial court improperly permitted defendant’s counsel on cross-examination to engage in argumentative questioning and improperly encouraged speculation.

Specifically, counsel questioned plaintiff as to releases plaintiff received from doctors allowing him to return to work. Plaintiff stated he was initially given a release from Dr. Rabin and, according to CIA policy, showed that release to a CTA physician. However, plaintiff did not then return to work. Plaintiff did return after he later obtained a second release from Dr. Wright, whom plaintiff had been referred to by a friend. When plaintiff was asked whether he returned to work based on the second release, plaintiff’s counsel objected. Defendant’s counsel explained to the court that he was attempting to ascertain why plaintiff elected to return to work after the second, rather than the first, release.

After reviewing the above testimony, we do not agree that counsel’s questioning was argumentative or otherwise improper. First, plaintiff admitted that he did not return to work after obtaining the initial release. Counsel’s inquiry as to why plaintiff returned to work after obtaining a second release was a direct and limited inquiry, not a speculative question as to the thoughts of another individual nor, as the record shows, was the inquiry argumentative.

Plaintiff also contends allowance of cross-examination by defense counsel regarding a collateral source of income was improper. However, we decline to address that issue here as we need not consider the propriety of testimony related to damages because we find reason to affirm the judgment below for defendant.

Plaintiff argues the trial court improperly instructed the jury on impeachment by prior inconsistent statements by reading Illinois Pattern Jury Instruction 3.01 (Illinois Pattern Jury Instructions, Civil, No. 3.01 (2d ed. 1971)). The instruction given provides in pertinent part:

“[Credibility of the witness may be attacked by introducing evidence that on some former occasion the witness acted in a manner inconsistent with the testimony of the witness in this case on a matter material to the issues.”

Plaintiff argues that the instruction was improper because the inconsistencies related to plaintiff’s statements, not conduct. Plaintiff also argues that the instruction was improper because the inconsistencies concerned collateral matters immaterial to the issues.

The record reflects, however, that the above instruction, as given, was tendered • by plaintiff and, therefore, we determine plaintiff thereby waived challenge to the giving of that instruction here.

Plaintiff also raises two contentions related to defendant’s counsel’s closing argument. Plaintiff argues that the trial court abused its discretion in denying a motion to preclude counsel’s comments regarding whether the bus operator’s seat collapsed, as testified to by plaintiff. Plaintiff also argues that certain of counsel’s comments made in closing were prejudicial.

The character and scope of argument to the jury is left largely to the trial court, and every reasonable presumption must be indulged in that the court performed that duty in the proper exercise of discretion. (Mohler v. Blanchette (1982), 106 Ill. App. 3d 545, 435 N.E.2d 1161.) After carefully reviewing counsel’s closing comments in the context of the above general proposition and plaintiff’s contentions, we cannot conclude that any abuse of discretion occurred. First, plaintiff’s motion to prohibit counsel’s comments with reference to the collapse of the bus operator’s seat was properly denied. It was plaintiff’s position at trial that the collapse of the seat was the cause of plaintiff’s injury. Comment on evidence pertaining to that issue was therefore proper. Further, denial of the motion at the outset of defendant’s counsel’s closing comments did not preclude later objection to improper comments related to that evidence if such were actually made by counsel. Moreover, with the exception of one comment, which counsel promptly withdrew, plaintiff failed at trial to object to any of counsel’s closing comments now asserted as prejudicial. We conclude that the failure to object to the allegedly improper remarks constitutes waiver thereof, and, after reviewing counsel’s comments, we cannot conclude those comments were so prejudicial as to deteriorate the judicial process or were of such character as to deprive plaintiff of a fair trial. See Terracina v. Castelli (1979), 80 Ill. App. 3d 475, 400 N.E.2d 27.

Last, plaintiff argues that the verdict was against the manifest weight of the evidence. Plaintiff’s argument, however, is based solely on the same assertions of error we have above determined to be meritless. Even so, we do not agree that the verdict was against the manifest weight of the evidence. At best, only conflicting evidence was presented at trial. As such, no basis exists to disturb the verdict given that evaluation of the evidence is within the province of the jury’s determination and because we conclude evidence existed to support the jury’s conclusion. Bogatyrew v. Wachter (1979), 71 Ill. App. 3d 654, 390 N.E.2d 435.

For the above reasons, we affirm the judgment of the circuit court.

Affirmed.

MURRAY, P.J., and PINCHAM, J., concur.


text:
    STEVE POLKA, Plaintiff-Appellant, v. ROBERT S. TURNER, Defendant-Appellee.
    First District (5th Division)
    No. 1—88—0842
    Opinion filed April 21, 1989.

      Thomas, Scanned & Heinemann, Ltd., of Blue Island, for appellant.
    Judge & Knight, Ltd., of Park Ridge (Jay S. Judge, Janella L. Barbrow, and Betty J. Gloss, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

In this opinion, we consider whether a complaint bearing the date stamp of the clerk of the circuit court indicating it was processed after the running of the limitations period for the action may be considered timely filed where counsel presents facts to establish the complaint was delivered to the clerk’s office within the limitations period.

The following facts are pertinent to our disposition.

On December 5, 1985, plaintiff was allegedly injured when he fell on defendant’s driveway. He subsequently brought suit in the sixth municipal district of the circuit court of Cook County. The complaint in that action bears the date and time stamp of the circuit court clerk’s office indicating it was filed on December 8, 1987. Interestingly, the stamp indicates it was affixed to the complaint at 1:21 a.m. The back of the last page of the complaint contains a cashier’s register stamp which indicates the filing fee was paid on December 8, 1987. The summons is also stamped December 8, 1987. Neither of those markings included a time designation.

On January 7, 1988, defendant moved to dismiss plaintiff’s complaint pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619) on the ground that the time for filing plaintiff’s action expired on Monday, December 7, 1987, in accordance with section 13 — 202 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 202). Plaintiff filed a response, asserting that although the complaint was stamped December 8, 1987, it was delivered into “the custody and control” of the clerk’s office on December 3, 1987, and was effectively filed at that time.

Attached to plaintiff’s response were the affidavits of two of plaintiff’s counsel’s employees. The affidavit of Christine Lambros stated that she prepared the summons and complaint in plaintiff’s cause and that, on December 3, 1987, gave those documents to Mary Lou Byrne, a co-worker, for “immediate filing” with the circuit court clerk in Markham, Illinois. Mary Lou Byrne’s affidavit stated that on December 3, 1987, she delivered “a group of pleadings along with a blank check for fees” to that office.

A hearing on defendant’s motion was held on March 10, 1988. On the basis of the pleadings, affidavits, and authority cited by counsel, the court ruled that such delivery was not sufficient to constitute a proper filing, concluding that the date indicated by the clerk’s stamp must govern the determination of when a complaint was filed. Taking judicial notice of the regular business hours of the clerk’s office, the court stated that although the stamp indicated it was affixed to the complaint at 1:21 a.m., such was immaterial given that the date, not the time, controlled determination of when a complaint was filed. The court granted defendant’s motion. This appeal followed.

Opinion

Essentially, plaintiff’s argument on appeal is that the affidavits of Lambros and Byrne overcome prima facie proof, in the form of the clerk’s stamp, that the complaint was filed on December 8, 1987. (See Ayala v. Goad (1988), 176 Ill. App. 3d 1091, 531 N.E.2d 1040.) Plaintiff contends the affidavits establish that the complaint was timely filed five days earlier when then “tendered” to the clerk of the circuit court, relying primarily on Hamilton v. Beardslee (1869), 51 Ill. 478, to support that argument. We agree Hamilton controls here. However, we disagree with plaintiff’s reading of that case and conclude a more accurate interpretation of Hamilton commands a different conclusion than plaintiff suggests.

Hamilton involved an action by defendant to vacate a default judgment entered in plaintiff’s action for assumpsit on the ground that the declaration had not been timely filed 10 days before commencement of the return term. Defendant’s counsel moved to set aside the default, swearing that he examined the case file twice during the return period and found no declaration. He swore that he again examined the case file on the return day and found a declaration which bore no file mark. Plaintiff’s counsel swore he prepared the declaration on January 21, 1869, the second day of the return term, and on that date, sent it with one of his employees to be filed with the court clerk. The employee swore that on January 21, 1869, he filed the declaration with the clerk in the presence of several deputies. Based on those facts, the superior court denied defendant’s motion.

On appeal, the supreme court noted that counsel’s employee did not state that he actually handed the document to the clerk or any deputy or even called attention to the fact that he desired to file it. Rather, he only laid it on the table and left. Such an act could not constitute a filing, the court reasoned, as:

“All know that to file a paper in a cause, it must be placed in the hands and under the control of the clerk *** [as] the purpose and object is to render it a part of the records of his office, and that object must be communicated to him in some manner capable of being understood.” (Emphasis added.) (Hamilton, 51 Ill. at 480.)

The court stated that to hold otherwise “would be to sanction a practice so loose that litigants could, and many times would, suffer great wrong.” (Hamilton, 51 Ill. at 481.) Because the manner of tender did not communicate plaintiff’s direction, the declaration had not been timely filed and, therefore, the default improperly granted. Hamilton, 51 El. at 481.

We similarly conclude plaintiff here failed to set forth facts sufficient to avoid the defense that the complaint was not timely filed as is necessary when that bar is raised in a motion to dismiss pursuant to section 2 — 619. (See Cundiff v. Unsicker (1983), 118 Ill. App. 3d 268, 454 N.E.2d 1089.) As in Hamilton, plaintiff has failed to establish more than that the complaint was delivered to the clerk’s office and left there. Neither the affidavit of Lambros nor that of Byrne establishes that the documents were handed to the clerk or to a deputy of that office on December 3, 1987, with direction that the documents were to be filed at that time and that such direction was successfully communicated. Indeed, we note the affidavits, when considered together, fail to set out that plaintiff’s complaint was, in fact, included with documents delivered to the clerk’s office on December 3, 1987. Evidence of delivery, alone, of a complaint to the clerk’s office on one date is insufficient to establish the complaint was then in the clerk’s exclusive control such as would overcome prima facie proof the complaint was filed on a different date as indicated by the clerk’s stamp. As the supreme court noted in Hamilton, equating mere delivery with filing would create a problematic practice, and, we suggest, one open to abuse. We therefore conclude the circuit court was correct in dismissing plaintiff’s complaint.

Plaintiff further contends that the court improperly precluded plaintiff an opportunity to present the testimony of the affiants.

The record reveals that, at the outset of the hearing on defendant’s motion, considerable discussion was had concerning whether the court would permit presentation of witnesses. Defendant’s counsel objected to participating in an evidentiary hearing. When the court indicated a willingness to consider testimony, defendant’s counsel asked to continue the matter so as to allow opportunity to present John Rita, the chief clerk, or procure Rita’s affidavit. The court refused counsel’s request, noting that other clerks were available to testify. Hearing on the motion proceeded.

Following arguments of counsel, the court ruled that, even if delivery of the complaint on December 3, 1987, was substantiated, such could not constitute a proper filing within the limitations period under the authority cited by plaintiff, particularly Hamilton. The court therefore indicated that witness testimony would be allowed only to the extent that that testimony could establish Hamilton was not controlling under the facts at issue. Plaintiff’s counsel responded that the affiants would elaborate on their affidavits. Following that response, the court granted defendant’s motion.

We cannot agree from the above that there is merit to plaintiff’s argument that the court erred in deciding defendant’s motion without allowing the affiants to testify. As stated previously, the affidavits failed to set out sufficient facts to substantiate that the documents were tendered to the clerk with a communicated understanding that they were to be filed on December 3, 1987. We cannot see how elaboration on the statements as contained therein would overcome that failure. Moreover, the record indicates that, when allowed an opportunity to present that testimony in order to avoid a ruling on the basis of the pleadings and affidavits alone, plaintiff did not take initiative to do so.

For the above reasons, the decision of the circuit court must be affirmed.

Affirmed.

COCCIA and PINCHAM, JJ., concur.