author: JUSTICE CLARK JUSTICE GOLDENHERSH,

text:
    (No. 57281.
    ELIAS TORRES et al., Plaintiffs, v. ALFRED T. WALSH, Judge, et al., Defendants.

      Opinion filed September 16, 1983.

    Modified on denial of rehearing December 2, 1983.

      GOLDENHERSH, J., dissenting.
    Alan C. Mendelson and Barry S. Grossman, of Chicago, for plaintiffs.
    John R Fielding, Special Assistant Attorney General, of Chicago, for defendant Alfred T. Walsh.
    Johnson, Cusack & Bell, Ltd., of Chicago (Brian C. Fetzer and Thomas H. Fegan, of counsel), for defendants Thomas P. Lake et al..

    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith and Anthony J. Alholm, of counsel), for defendant Memorial Medical Center.
    Baker & McKenzie, of Chicago (Francis D. Morrissey and John T. Coleman, of counsel), for defendants Choon Bong Choi and Springfield Clinic Facilities, Inc.
    Wildman, Harrold, Allen & Dixon, of Chicago (Mark C. Fedota and Marcia B. Orr, of counsel), for defendants Richard B. McCormick and Physicians Group Clinic, S.C.
    Peterson, Ross, Schloerb & Seidel, of Chicago (J. Richard Childers, John M. Duczynski, and Thomas White, of counsel), for defendants Illinois, Inc., d/b/a Springfield Community Hospital et al.

    French, Rogers, Kezelis & Kominiarek, EC., of Chicago (Richard G. French, Gilbert J. Rogers, and Robert S. Burtker, of counsel), for defendant Walter Wheelhouse.
    Haskell & Perrin, of Chicago (Willis R. Tribler, of counsel), for amicus curiae Illinois Defense Counsel.
    Winston & Strawn, of Chicago (Calvin Sawyier and James Fletcher, of counsel), for amicus curiae Illinois State Medical Society.
    Kenneth Robbins, of Naperville, for amicus curiae Illinois Hospital Association.
    George M. Elsener, Albert F. Hofeld, and Jeffrey W. Williams, of Chicago, and Howard H. Braverman, of Springfield, for amicus curiae Illinois State Bar Association.
    Thomas L. Hayward, Jr., John F. McCarthy, and Robert A. Clifford, of Chicago, for amicus curiae Chicago Bar Association.
   JUSTICE CLARK

delivered the opinion of the court:

This action was brought in the circuit court of Cook County by Elias and Celia Torres seeking damages which resulted from an automobile collision on November 21, 1981, and from alleged medical malpractice following that accident which rendered Elias Torres a quadriplegic.

Plaintiffs’ complaint alleges that on November 21, 1981, at 5:20 p.m. defendant Dale Palmer was operating his automobile negligently and collided with plaintiffs’ automobile. It is alleged that the collision caused serious injury to both plaintiffs. This collision occurred on Interstate Highway 55 at or near the overpass on Toronto Road in Woodside Township of Sangamon County.

The plaintiffs’ complaint alleges that plaintiff Elias Torres was admitted to Springfield Community Hospital for treatment of his injuries resulting from the automobile collision and that the medical treatment rendered to plaintiff at the hospital was allegedly performed in a negligent manner. Springfield Community Hospital is located in Sangamon County. Defendant Memorial Medical Center is also located in Sangamon County.

The following physicians are named as defendants in this action: Walter Wheelhouse, M.D., Lyle Wacaser, M.D., Richard B. McCormick, M.D., Rosalino T. Higueras, M.D., Robert Vautrain, M.D., Choon Bong Choi, M.D., Steven J. Jackman, M.D., Thomas R Lake, M.D., Charles H. Williams, M.D., and David J. Porter, M.D. All of them practice in Sangamon County.

The following nurses are named in the complaint as defendants: R. Bartmann, C.R.N.A., Susan Sclucu, R.N., M. Lucas, R.N., P. Culler, R.N., D. Austif, R.N., Karen Denny, R.N., John Dronsfield, R.N., and M. Schneider, R.N. All of them practice in Sangamon County.

Humana of Illinois, Inc., d/b/a Springfield Community Hospital, and Humana Management Systems, Inc., are also named as defendants in the action. Humana of Illinois, Inc., owns and operates Springfield Community Hospital. Humana Management Systems, Inc., is a data-processing service company and is not involved in patient care. It contracts with Springfield Community Hospital to provide accounting and data-processing services. The offices of C. T. Corporation System, a registered agent of defendants Humana of Illinois, Inc., and Humana Management Systems, Inc., are located in Cook County.

Elias and Celia Torres live in the vicinity of San Antonio, Texas. Defendant Dale Palmer lives in Auburn, Illinois, which is in Sangamon County.

Defendants requested that the trial court transfer the case to Sangamon County. The trial court found venue to be proper in Cook County but ordered a transfer to Sangamon County. The order stated:

“1. The Court finds that venue is proper in Cook County, Illinois under Sections 2 — 101 and 2 — 102 of the Illinois Code of Civil Procedure.
2. The Court further finds that all defendants have agreed to waive service if this action is refiled in Sangamon County, Illinois.
3. That it is hereby ordered that plaintiffs’ cause of action be and the same hereby is, transferred to Sangamon County, Illinois.”

The plaintiffs then petitioned this court directly seeking writs of mandamus and prohibition or a supervisory order to compel the trial court to vacate its order and retain venue in Cook County. (Ill. Const. 1970, art. VI, secs. 4(a), 16; 87 Ill. 2d R. 381.) The issue before us is whether the trial court has the authority under the doctrine of forum non conveniens to transfer the lawsuit to another county when venue in Cook County is proper but inconvenient to the defendants and other interested parties.

Count I of the plaintiffs’ complaint alleged that Elias Torres became a quadriplegic as the result of medical malpractice on an undisplaced fracture of his cervical spine after his admission to Springfield Community Hospital on November 21, 1981, following an automobile collision. Count II alleged that he underwent surgery on November 26, 1981, to repair a fractured patella, and that, applying the doctrine of res ipsa bquitur, he became a quadriplegic due to injuries to his cervical spine during that surgery, injuries that the plaintiff claims were the fault of someone at Springfield Community Hospital. Count III alleged a cause of action for Elias Torres against the driver of the automobile which collided with the plaintiffs’ automobile on November 21, 1981. In count IV Celia Torres alleged a cause of action against all defendants for loss of her husband’s consortium. Count V alleged a cause of action for Celia Torres against the driver of the automobile for her own personal injuries.

Because ah action may be brought in the county of the residence of any defendant when commenced in good faith (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 101), and the residence of a corporation for purposes of venue is any county “in which it has its registered office or other office or is doing business” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 102), venue in the instant case is proper in Cook County.

The defendants assert that a writ of mandamus is not an appropriate vehicle for relief in the instant case. It is clear that if the trial court did not have the authority to transfer the case then a writ of mandamus would be an appropriate vehicle here but if the trial court did possess the authority then a writ of mandamus would be inappropriate since it will not lie “to direct the manner in which a judge is to exercise his discretion.” Chicago & North Western Transportation Co. v. Matoesian (1981), 85 Ill. 2d 404, 406, citing People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178, 180.

We must determine whether the trial court has the authority to transfer the lawsuit when venue in Cook County is proper.

The doctrine of forum non conveniens has been recognized and employed by courts in this State for many years in cases involving other States. This court described the doctrine in Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511:

“Forum non conveniens is a doctrine that is founded in considerations of fundamental fairness and sensible and effective judicial administration. In the application of these basic considerations a court may decline jurisdiction of a case ‘even though it may have proper jurisdiction over all parties and the subject matter involved’ (Whitney v. Madden (1948), 400 Ill. 185, 189, cert denied, 335 U.S. 828, 93 L. Ed. 382, 69 S. Ct. 55), whenever it appears that there is another forum that can better ‘serve the convenience of the parties and the ends of justice.’ (Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 606.) Factors to be considered in disposing of a motion to dismiss forum non conveniens include the relative capacities of the two courts to provide a fair trial, the relative inconvenience to witnesses and parties, and the burden placed upon the taxpayers and residents of the jurisdiction to which the cause of action is transported.” 54 Ill. 2d 511, 514.

In Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839, the United States Supreme Court looked at whether a United States District Court had the inherent authority to dismiss a suit pursuant to the doctrine of forum non conveniens. The court said:

“The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. ***
* * *
Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to which plaintiff resorts, and experience has not shown a judicial tendency to renounce one’s own jurisdiction so strong as to result in many abuses.
If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.
Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation.” 330 U.S. 501, 507-09, 91 L. Ed. 1055, 1062, 67 S. Ct. 839, 842-43.

In the Gulf Oil case the United States Supreme Court recognized that the doctrine of forum non conveniens is a discretionary power which should be exercised only in exceptional circumstances when it has been shown that the interests of justice require a trial in a more convenient forum.

Courts in many of our sister States throughout the countiy have the statutory authority to transfer cases to other counties within the same State on the grounds of forum non conveniens, where the convenience of the witnesses and the ends of justice would be promoted.

See Alaska - Alaska Stat. sec. 22.10.030(d) (1982);
Arizona - Arizona Rev. Stat. Ann. sec. 12 — 406A (1982);
California - Cal. [Civ. Proc.] Code sec. 410.30 (1982);
Connecticut - Conn. Gen. Stat. sec. 51 — 347a (Supp. 1983);
Florida - Fla. Stat. Ann. sec. 47.122 (Supp. 1983);
Hawaii - Hawaii Rev. Stat. sec. 603 — 37 (1976);
Indiana - Ind. Code Ann. sec. 34 — 1—13—1 (1973);
Michigan - Mich. Stat. Ann. R. 403 (1982);
Minnesota - Minn. Stat. Ann. sec. 542.11 (1947);
Nebraska - Neb. Rev. Stat. sec. 25 — 410 (1979);
Nevada - Nev. Rev. Stat. sec. 13.050 (1979);
New Hampshire - N.H. Rev. Stat. Ann. sec. 507:11 (1968);
New York - N.Y. [Civ. Prae.] Law sec. 510:3 (Consol. 1976);
North Dakota - N.D. Cent. Code sec. 27 — 07.1—22 (1981); Oregon - Or. Rev. Stat. sec. 14.110 (1981);
Utah - Utah Code Ann. sec. 78-13-9 (1977);
Virginia - Va. Code sec. 8.01 — 265 (1983);
Washington - Wash. Rev. Code sec. 4.12.030 (1962).

While in Illinois we are without any statutory authorization, we find that such authority to transfer a case under the doctrine of forum non conveniens exists at common law, and, therefore, statutory authorization is unnecessary as it only recognizes and codifies a right that previously existed at common law.

The doctrine of forum non conveniens originated in the common law of England which Illinois adopted as it existed “prior to the fourth year of James the First” (Ill. Rev. Stat. 1981, ch. 1, par. 801). “ ‘What the statute adopted was not just those precedents which happened to have already been announced by English courts at the close of the sixteenth century, but rather a system of law whose outstanding characteristic is its adaptability and capacity for growth. The common law which the statute adopted “is a system of elementary rules and of general judicial declarations of principles, which are continually expanding with the progress of society, adapting themselves to the gradual changes of trade, commerce, arts, inventions and the exigencies and usages of the country.” Kreitz v. Behrensmeyer, 149 Ill. 495.’ ” (People ex rel. Keenan v. McGuane (1958), 13 Ill. 2d 520, 535.) Decisions of English common law courts are in force here (People v. Lewis (1940), 375 Ill. 330), and are followed to the extent that they apply to conditions and usages in this country. Lasier v. Wright (1922), 304 Ill. 130.

Some of the earlier English cases said that removal to another county might be had “for the necessity of an indifferent trial.” (Queen v. Inhabitants of County of Wiltz (1705), 6 Mod. 307. Accord, Rex. v. Cowle (1759), 2 Burr. 834, 859, 97 Eng. Rep. 587, 602; Sir Samuel Gerard’s Case (1705), Salk. 670; see French v. Kent (1662), Raym. 33, 83 Eng. Rep. 18.) It had been well established that when an impartial trial could not be obtained the court of the King’s Bench had the authority to transfer the trial to the next adjoining county. (1 Chitty, Criminal Law, at 201, 371, 494 (2d ed. 1841).) The doctrine further developed to include circumstances which in the discretion of the court serve the interests of justice where the witnesses resided at a great distance from the county where the venue was laid. In Holmes v. Wainwright (K.B. 1803), 3 East 329, 330, 102 Eng. Rep. 624, Lord Ellenborough said:

“If the inconvenience of trying the cause in the one or the other county were balanced in any degree, we should not interfere with the acknowledged general right of the plaintiff to try his cause where any part of the cause of action arose; but as the defendant is willing to admit the only fact which exists within the venue now laid, all the convenience and justice of the case preponderates in favour of the application.”

The court applied the forum non conveniens doctrine and transferred the case from London to Yorkshire.

This court has addressed the application of this common law doctrine of forum non conveniens on a number of occasions on an interstate basis, and it has been recognized that it is a proper mechanism by which to dismiss a case that has no practical connection to the forum. People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90; Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511; Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill. 2d 1; People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178; Whitney v. Madden (1948), 400 Ill. 185.

In Cotton v. Louisville & Nashville Ry. Co. (1958), 14 Ill. 2d 144, this court addressed the forum non conveniens issue in the context of a Federal Employers’ Liability Act (FELA) case (45 U.S.C. sec. 51 et seq. (1976)). There the court said that forum non conveniens allowed the courts of this State to decline to exercise jurisdiction when the case arose beyond the State lines, provided that the defendant was able to show that plaintiff’s choice of forum was made only to harass the defendant. 14 Ill. 2d 144,174.

This court said in People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178, 180, that an intent to harass can rarely be proved and that the court was not seeking to impose an unrealistic standard upon the defendants that would sterilize the doctrine. In People ex rel. Chesapeake & Ohio Ry. Co. this court said, “The statement in the Cotton case, ‘that only where it is shown that plaintiff is motivated purely by vexation and harassment will an F.E.L.A. case be dismissed’ is disavowed.” (30 Ill. 2d 178, 180.) This court has since determined that policy is better served by inquiring whether another forum better serves the convenience of the parties and the interests of justice. Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514.

In Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 125, the court found that the trial judge’s denial of the defendant’s motion to dismiss on forum non conveniens grounds in an interstate FELA action did constitute an abuse of discretion. In the text of the opinion the court again recalled the statement from the court’s opinion iPeople ex rel. Compagnie Nationals Air France v. Giliberto (1978), 74 Ill. 2d 90, cert. denied (1979), 441 U.S. 932, 60 L. Ed. 2d 660, 49 S. Ct. 2052, that “unless the balance of the relevant factors is strongly in favor of the defendant, plaintiff’s choice of forum should rarely be disturbed.” (86 Ill. 2d 111, 119.) We then said that in considering whether the case should have been dismissed it was appropriate to consider the availability of an alternate forum, access to sources of proof, the accessibility of witnesses, the relative advantages and obstacles to obtaining a fair trial, the congestion of the court dockets, and the convenience of the parties. 86 Ill. 2d 111, 116-21.

In Horn v. Rincker (1981), 84 Ill. 2d 139, this court, pursuant to our supervisory authority (Ill. Const. 1970, art. VI, sec. 16) made an intercircuit consolidation of three causes of action that arose from the same occurrence and were pending in three separate venues. In Horn we reviewed the principles of the doctrine of forum non conveniens in determining whether to exercise our supervisory authority and, if so, in what manner. While we did not decide the case based upon the forum non conveniens doctrine, the consolidation of the three intrastate actions after an examination of the principles underlying the doctrine of fairness to the litigants and the effective administration of justice is an indication that we felt it necessary to see that the most appropriate forum should be the place in which those cases would be heard. .

When the doctrine oí forum non conveniens is available in transferring a case from Springfield, Illinois, to St. Louis, Missouri, we feel that a case should be able to be transferred from Chicago to Springfield — two cities in the same State — under the same theory.

In 1929, it was noted in Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum. L. Rev. 1 (1929), that “the courts of this country have been for years applying the doctrine with such little consciousness of what they were doing as to remind one of Moliere’s M. Jourdain, who found he had been speaking prose all his life without knowing it.” While the doctrine has since been recognized and applied in interstate cases we feel we should recognize that the rationale underlying such applications is as valid on an intrastate as it is on an interstate basis. If the reasons for applying the doctrine in certain interstate situations are good ones and in the best interest of justice, and we believe they are, then such reasoning is also persuasive where a comparable situation exists within the boundaries of this State. Horn v. Rincker (1981), 84 Ill. 2d 139. See Gulf Oil Co. v. Woodson (Okla. 1972), 505 P.2d 484; Quillin v. Hesston Corp. (1982), 230 Kan. 591, 640 P.2d 1195; Gonzales v. Atchison, Topeka & Santa Fe Ry. Co. (1962), 189 Kan. 689, 371 P.2d 193.

We see no advantage in drawing artificial distinctions when no purpose is served in doing so. In recognizing the discretion of the trial court to dismiss a case within its jurisdiction when a more appropriate intrastate forum is available and when maintenance of the action in the original forum causes unnecessary hardship to the defendant and other interested parties, we hope to promote fair play between plaintiffs and defendants and discourage the incessant jockeying for a more sympathetic jury likely to come forward with a more substantial award.

In finding that the trial courts have such authority, we emphasize the factors to be taken into consideration in making the decision: the availability of an alternate forum, the access to sources of proof, the accessibility of witnesses, the relative advantages and obstacles to obtaining a fair trial, the congestion of the court dockets, and the convenience of the parties. We also caution our trial courts that unless those factors strongly favor the defendant, then the plaintiff should be allowed to exercise his choice in deciding in what forum to bring the case when venue is proper.

If there are sufficient factors that favor the plaintiff’s choice of forum, then the defendant’s inconvenience should not be considered, provided venue is proper. For unless the balance strongly favors the defendant, then the plaintiff should be able to exercise his statutory right to choose his forum.

In announcing our decision today, we are cognizant of amended House Bill 1082 — An Act to add Section 2— 106 — 1 to the “Code of Civil Procedure.” It provides that an action brought pursuant to a Federal law granting concurrent Federal and State jurisdiction shall not be dismissed or transferred by a court having venue “on the grounds that there is a more appropriate or convenient forum in another state, unless the action imposes a substantial burden on such court.” Since the bill was defeated in the Illinois Senate on June 28, 1983, we will not consider any inferences that could be drawn from such legislative language, other than such was not the intent of the Illinois Senate on June 28,1983.

Because we have determined that the trial court did have the authority to grant an intrastate forum non conveniens motion, we find mandamus to be an inappropriate remedy in this case. Once we have concluded that the trial court did have the authority, the next question to be resolved is whether the trial court abused its discretion in granting the motion. However, mandamus is not the method by which this court reviews the exercise of a trial court’s discretion. As this court said in Chicago & North Western Transportation Co. v. Matoesian (1981),. 85 Ill. 2d 404, mandamus “will [not] lie to direct the manner in which a judge is to exercise his discretion.” (85 Ill. 2d 404, 406.) In Matoesian the court recalled the words of the court’s opinion in People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill. 2d 515, 520:

“ ‘[A] motion to dismiss based on forum non conveniens raises an issue which necessitates an exercise of discretion by the trial judge in ruling thereon. Such discretionary action of a trial judge cannot be reviewed or controlled by mandamus unless the judge refused to exercise his discretion at all ***.’ (People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill. 2d 515, 520.)” (85 Ill. 2d 404, 407.)

The court in Matoesian held that mandamus was not an appropriate remedy because the court could not, by mandamus, direct a circuit court judge how to act where there has been no showing that the judge either failed to act or had “frustrated the exercise of discretion by applying an erroneous rule of law.” (85 Ill. 2d 404, 410.) The court reasoned in Matoesian that “[w]hether the judge erred in denying the motion [to dismiss an FELA action based on forum non conveniens], which constituted a discretionary act, is not a proper issue in a mandamus proceeding. Man damus is not designed to be a substitute for an appeal. (Lara v. Schneider (1979), 75 Ill. 2d 63, 64.)” (85 Ill. 2d 404, 409.) We do not, however, consider it inappropriate, in the exercise of our supervisory authority, to observe that the trial court, in transferring this cause, acted within the bounds of sound discretion.

Because we have found that the trial court had the discretion to grant or deny the intrastate forum non conveniens before it, we must deny the issuance of a writ of mandamus. Accordingly, the writ of mandamus is denied.

In conclusion, since this is the first pronouncement of this court allowing the intrastate application of the doctrine of forum non conveniens, we believe it is only equitable that we apply our holding to this case, the case of Mesa v. Chicago & North Western Transportation Co. (1983), 98 Ill. 2d 356 (which we remanded to the circuit court under our supervisory authority) and to all cases filed on or after September 16, 1983, the date on which the opinions in this case and the Mesa case were filed.

Writ denied.

JUSTICE GOLDENHERSH,

dissenting:

I dissent. There is no basis in statutory or case law for the transfer of this cause to Sangamon County, the circuit court was without authority to order it, and clearly mandamus should issue.

In reaching its conclusion the majority fails to consider the difference between jurisdiction and venue. The doctrine of forum non conveniens is grounded on the concept that courts may decline jurisdiction where, under the applicable general venue statute, jurisdiction could appropriately be exercised. Venue, however, deals with the matter of where within a jurisdiction the cause is to be heard. This court has consistently held that the determination of venue is for the legislature. Chappells v. Sorenson (1957), 11 Ill. 2d 472; Mapes v. Hulcher (1936), 363 Ill. 227.

Illustrative of the difference between jurisdiction and venue are the sources of the authority of the Federal courts to decline jurisdiction under the doctrine of forum non conveniens and to transfer venue in causes of action. In Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839, the Supreme Court approved the dismissal of a cause of action under the doctrine of forum non conveniens. The authority, however, for interdistrict transfers stems from title 28 U.S.C. section 1404(a) (1976), enacted subsequent to the adoption of the opinion in Gulf Oil, and recognizing that transfer to a more convenient venue may be effected only pursuant to statutory authority. See Sohns v. Dahl (W.D. Va. 1975), 392 F. Supp. 1208; C. Wright, Federal Courts sec. 44, at 164 — 65 (2d ed. 1970).

The order entered by the circuit court in this case further demonstrates the confusion which this opinion will cause. The order provides:

“2. The Court further finds that all defendants have agreed to waive service if, this action is refiled in Sangamon County, Illinois.
3. That it is hereby ordered that plaintiffs’ cause of action and the same hereby is, transferred to Sangamon County, Illinois.”

Obviously, these provisions are inconsistent. If the cause is transferred it proceeds without the requirement that any additional summonses be served. If, in fact, it purports to be a dismissal, requiring refiling and service of summons, it is clearly violative of the venue statute for the reason that transfer, rather than dismissal, is available even where wrong venue has been invoked.

The circuit court and the majority are in agreement that under section 2 — 102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 102) venue is properly in Cook County. Citing English authorities dating from 1705, the majority concludes that the circuit court was vested under the common law with the authority to transfer the cause to another county. The majority overlooks the fact that our statute adopted the common law of England as it existed prior to March 24, 1606. Decisions of the courts of England in 1705 and thereafter are not authority for the position which the majority takes.

The majority cites a number of jurisdictions which have, by statute, authorized what the circuit court did here. This further demonstrates that, absent statutory authority, the order was improper. Of the jurisdictions which have considered the question whether courts possess the authority, without statutory enactment, to effect intrastate transfer of causes, only two have found an inherent or common law power to do so. An examination of the opinions (see Gonzales v. Atchison, Topeka & Santa Fe Ry. Co. (1962), 189 Kan. 689, 371 P.2d 193; Gulf Oil Co. v. Woodson (Okla. 1972), 505 P.2d 484) shows that the authority is allegedly found in the acceptance of the common law in that jurisdiction, but it cannot be determined from either opinion the date at which the state of the common law is to be determined. Obviously it was not 1606 or the result would have been different.

I need not lengthen this dissent by pointing out the confusion which the utter disregard of the venue statutes evidenced by this opinion will cause in the administration of justice in this jurisdiction. To destroy in one stroke the stability created by a long history of deference to legislative governance of venue is an unfortunate mistake which should be immediately corrected.


source: Caselaw Access Project

author: JUSTICE CLARK

license: Public Domain

text:
    (No. 56871.
    RODOLFO MESA, Appellee, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Appellant.

      Opinion filed September 16, 1983.

    James P. Daley and John S. Bishof, Jr., of Chicago, and Theodore J. Williams, Jr., of Shepherd, Sandberg & Phoenix, of St. Louis, for appellant.
    Paul L. Pratt, P.C., of East Alton (Roy W. Strawn, of counsel), for appellee,
   JUSTICE CLARK

delivered the opinion of the court:

The plaintiff, Rodolfo Mesa, a Cook County resident, retained a Madison County law firm to file a complaint on his behalf in Madison County, Illinois. The county seat of Madison County is Edwardsville, located some 300 miles from Chicago. Mesa brought this action pursuant to the Federal Employers’ Liability Act (45 U.S.C. sec. 51 et seq. (1972)) for personal injuries allegedly caused by the negligence of his employer, the Chicago and North Western Transportation Company. The defendant moved in the trial court to dismiss the case based upon the doctrine of forum non conveniens. The motion was denied on March 12, 1982. Pursuant to Supreme Court Rule 306 (85 Ill. 2d R. 306), the defendant sought review of the order denying the motion which was denied by the appellate court on May 12, 1982. The defendant then petitioned this court, appealing the order denying the defendant’s petition. We granted the defendant’s petition for leave to appeal. 87 Ill. 2d R. 315.

The issues before us are (1) whether the appellate court erred in denying the defendant’s petition for leave to appeal and (2) whether the doctrine of forum non conveniens is applicable to actions arising within the State of Illinois.

On August 25, 1980, Mesa allegedly sustained personal injuries while employed as a trackman by the Chicago and North Western Transportation Company (North Western), located in the city of Evanston, Cook County. Mesa was treated for his injuries at Augustana Hospital in Chicago, and further examined and treated by seven doctors whose medical offices are located in Chicago.

The North Western has its principal office and place of business at Chicago. It owns and operates railroad properties in other areas, including Madison County.

On July 28, 1981, a complaint was filed against the North Western under the Federal Employers’ Liability Act in the circuit court of Madison County charging the defendant with negligence and seeking damages for injuries allegedly sustained by Mesa on August 25,1980.

On August 21, 1981, defendant filed its appearance and motion to dismiss based on section 48(l)(f) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 48(1)(f)). That motion was denied October 16, 1981.

On November 4, 1981, defendant filed its motion, seeking dismissal or, in the alternative, transfer of Mesa’s complaint to Cook County on the basis of forum non conveniens. The motion was heard on December 29, 1981. On March 12, 1982, the court entered an order denying the motion to dismiss on the basis of forum non conveniens.

Defendant thereafter filed a petition for leave to appeal to the appellate court pursuant to Rule 306 (85 Ill. 2d R. 306). On May 12, 1982, defendant’s petition was denied.

We first address the issue of appealability. Rule 306 provides:

“An appeal may be taken in the following cases only on the allowance by the Appellate Court of a petition for leave to appeal:
***
(ii) from an order of the circuit court denying a motion to dismiss on the grounds of forum non conveniens.”
(Emphasis added.) 85 Ill. 2d R. 306(a)(l)(ii).

The defendants would have us believe that the granting of leave to appeal by the appellate court is a matter of right. Clearly it is not, and we feel that a further discussion of the defendant’s arguments on this issue is unwarranted.

The second issue to be addressed in this appeal is whether the doctrine oí forum non conveniens is applicable to actions arising within the State of Illinois. That issue has been addressed and resolved in our decision in Torres v. Walsh (1983), 98 Ill. 2d 338.

Prior to the filing of our opinion in Torres, it had not been established that an intrastate application of the doctrine of forum non conveniens was ever appropriate in this State. Since we have ruled that there are exceptional cases in which it is, we have decided that the trial court in the instant case is now in a better position to consider and weigh the relevant factors we articulated in Torres in making its decision on the forum non conveniens motion.

We therefore, as an exercise of our supervisory authority (Ill. Const. 1970, art. VI, sec. 16), remand this case to the circuit court of Madison County for consideration of the defendant’s motion in accord with our decision in Torres.

Supervisory order entered.


author: CHIEF JUSTICE RYAN

text:
    (No. 57325.
    MELVA I. WIESER, Adm’x, Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

      Opinion filed October 21, 1983.

      Walker and Williams, P.C., of Belleville (David B. Stutsman and Gordon E. Maag, of counsel), for appellant.
    John E. Norton, of Norton, Bonifield & Associates, P.C., of Belleville, and Edward J. Kionka, of Carbondale, for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

This case arises out of an action filed under the Federal Employers’ Liability Act (45 U.S.C. sec. 51 et seq. (1976)). The sole issue raised for our consideration is whether the trial court abused its discretion when it denied defendant’s motion to decline jurisdiction based upon the doctrine of forum non conveniens.

Melva I. Wieser, as administratrix of the estate of Thomas R. Wieser, filed a complaint in the circuit court of St. Clair County, Illinois, under the Federal Employers’ Liability Act. Melva Wieser was the wife of Thomas R. Wieser, who was employed by the defendant, Missouri Pacific Railroad Company, at its facilities near Wagoner, Oklahoma. On October 13, 1979, Thomas R. Wieser was killed as the result of an automobile accident. He had apparently finished work for the day and was driving in an easterly direction near Muldrow, Oklahoma. Another vehicle crossed the center line and struck his vehicle, causing the fatal injury. At the time of the accident, and when the complaint was filed, plaintiff was a resident of Barling, Arkansas, as was the deceased, her husband.

On January 22, 1981, defendant filed a motion to decline jurisdiction based upon the doctrine of forum non conveniens, and filed an affidavit and a brief in support of this motion. The plaintiff did not file any affidavit or other pleading in opposition to the motion. On May 18, 1982, the trial judge denied defendant’s motion to decline jurisdiction. Defendant’s petition for leave to appeal under our Rule 306(a)(l)(ii) (87 Ill. 2d R. 306(a)(l)(ii)) was denied by the appellate court. We granted defendant’s petition for leave to appeal pursuant to Rule 315 (87 Ill. 2d R. 315).

Plaintiff has filed a motion with this court requesting leave to supplement the record on appeal. We note that defendant filed a brief, affidavit and exhibits in support of its motion before the trial court. However, no documents of any kind were filed by the plaintiff. In passing on plaintiff’s motion to supplement the record, the following sequence of events is significant.

On May 12, 1982, defendant’s motion to decline jurisdiction was denied. On June 3, 1982, defendant requested that the record on appeal be prepared. On June 10, 1982, defendant filed its petition for leave to appeal with the appellate court. On June 29, 1982, nearly seven weeks after the trial court denied the motion, the plaintiff filed with the circuit court of St. Clair County a written motion in opposition to defendant’s original motion to decline jurisdiction. This motion was never made part of the record on appeal. On May 10, 1983, a year after the trial court denied the defendant’s motion, plaintiff filed a motion in this court to supplement the record on appeal by filing in this court a copy of the motion in opposition to defendant’s motion to decline jurisdiction which plaintiff had filed in the trial court. In the meantime, the appellate court had denied defendant’s petition for leave to appeal, this court had allowed defendant’s petition for leave to appeal, briefs for all parties had been filed, including a reply brief filed by defendant, and the case had been set for oral argument.

This is a belated attempt by the plaintiff to bolster what is apparently perceived as a deficient record. This motion was obviously not a part of the record made at the proceedings from which the appeal now before this court was taken. It will not, therefore, be considered by this court. Plaintiff’s counsel argues that substantially all of the contents of the motion were argued orally before the trial court prior to the denial of defendant’s motion to decline jurisdiction. This is not the proper way to make a record for appeal. Our Rules 321 and 323 (87 Ill. 2d Rules 321, 323) provide for the content of the record on appeal. Rule 329 (87 Ill. 2d R. 329) sets forth the means by which the record on appeal may be amended. The procedure plaintiff now asks us to approve does not conform to the requirements of our rules. Plaintiff’s assertion that these questions were argued orally before the trial court is not convincing. If plaintiff thinks the record is inadequate, the procedure set forth in our rules for amending the record should have been followed. We therefore deny plaintiff’s motion to supplement the record.

The doctrine of forum non conveniens presupposes the existence of more than one forum in which jurisdiction may be obtained over the parties and the subject matter of a case, and in which the controversy may be tried. The doctrine furnishes criteria for the choice of the forum. (Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839.) The inquiry in any forum non conveniens case centers upon which of several forums is most convenient under the facts of that case. (Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111; People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90.) We have this term applied the doctrine intrastate. (Torres v. Walsh (1983), 98 Ill. 2d 338; Mesa v. Chicago & North Western Transportation Co. (1983), 98 Ill. 2d 356.) The question is not one of jurisdiction. Even though the forum may have the power to adjudicate the controversy, under the doctrine it may be inappropriate under the facts of that case to do so if there is another forum with jurisdiction of the parties in which the case can be more conveniently tried. As this court stated in Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514:

“Forum non conveniens is a doctrine that is founded in considerations of fundamental fairness and sensible and effective judicial administration. In the application of these basic considerations a court may decline jurisdiction of a case ‘even though it may have proper jurisdiction over all parties and the subject matter involved’ (Whitney v. Madden (1948), 400 Ill. 185, 189, cert. denied, 335 U.S. 828, 93 L. Ed. 382, 69 S. Ct. 55), whenever it appears that there is another forum that can better ‘serve the convenience of the parties and the ends of justice.’ (Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 606.)”

We have held that whether the facts of a particular case require the allowance of a motion to dismiss under the doctrine of forum non conveniens is within the sound discretion of the trial court. The court’s decision will be reversed on review if it can be said that in deciding as it did there was an abuse of discretion. Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 373; People ex rel. Compagnie National Air France v. Giliberto (1978), 74 Ill. 2d 90.

Although the doctrine of forum non conveniens has a long history, its general application crystalized following the decision by the Supreme Court in Gulf Oil Corp. v. Gilbert. (See Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252.) In Gilbert the court discussed the private interests and the public interests that must be balanced in determining the appropriate forum in which the case should be tried. In Adkins v. Chicago, Rock Island & Pacific R.R. Co. this court also referred to the factors that must be balanced in considering a motion to decline jurisdiction. This court stated:

“Factors to be considered in disposing of a motion to dismiss forum non conveniens include the relative capacities of the two courts to provide a fair trial, the relative inconvenience to witnesses and parties, and the burden placed upon the taxpayers and residents of the jurisdiction to which the cause of action is transported.” (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514.)

These factors likewise contain the consideration of both private and public interest.

In Gilbert the court also stated that unless the balance is strongly in favor of defendant, the plaintiff’s choice of forum should rarely be disturbed. This court has recognized the deference that should be paid to the plaintiff’s choice of forum. (See Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 372-73; Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 118.) This deference to plaintiff’s choice of forum is commonly referred to as an unequal balancing test.

Plaintiff relies heavily on the language of Gilbert and Espinosa in asserting that plaintiff’s right to choose the forum should rarely be disturbed. The statement in Gilbert to this effect has generally been stated without a discussion or an examination of its rationale. The test is somewhat differently stated, however, in Restatement (Second) of Conflicts of Law sec. 84(c) (1971). In comment c it is stated that since it is for the plaintiff to choose the place of suit, his choice of forum should not be disturbed except for weighty reasons. In Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144, this court placed an extremely strict construction on the plaintiff’s right to choose the forum in a Federal Employers’ Liability Act case (FELA) and held that “only where it is shown that plaintiff is motivated purely by vexation and harassment will an F.E.L.A. case be dismissed.” (Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144, 174.) However, this strict construction of the plaintiff’s choice of forum was overruled in People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178, 180, where the court stated, “Such a requirement could effectively sterilize the doctrine of forum non conveniens ***.”

This court’s opinion in Espinosa was filed September 30, 1981. In that case we acknowledged the statement of the Supreme Court in Gilbert that unless the balance of relevant factors is strongly in favor of the defendant, plaintiff’s choice of forum should rarely be disturbed. However, in Espinosa, after balancing the relevant factors, we held that the denial of a motion to dismiss on the grounds of forum non conveniens constituted an abuse of discretion.

In Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252, in an opinion filed December 8, 1981, slightly more than two months after our opinion in Espinosa, the Supreme Court examined the rationale of the deference that is given to plaintiff’s choice of forum and noted that the plaintiff’s choice is not entitled to the same weight or consideration in all cases. The court stated that the central purpose of any forum non conveniens inquiry is to assure that the trial is convenient. When the home forum is chosen, it is reasonable to assume that the choice is convenient. When the plaintiff is foreign to the forum chosen, however, this assumption is much less reasonable and the plaintiff’s choice deserves less deference. In support of this holding that plaintiff’s choice is entitled to less consideration when the home forum is not chosen, the court cited Koster v. (American) Lumbermens Mutual Casualty Co. (1947), 330 U.S. 518, 91 L. Ed. 1067, 67 S. Ct. 828, a companion case to Gulf Oil Corp. v. Gilbert. In Jones v. Searle Laboratories this court noted the holding of Piper Aircraft Co. v. Reyno, stating, “[TJhere are numerous cases which properly accord less deference to a foreign plaintiff’s choice of forum.” (Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 378.) Thus, under the facts of this case, the plaintiff’s choice of St. Clair County, Illinois, as the forum in which this case is to be tried is not entitled to the same deference her choice would have been accorded if the case would have been filed in her home forum.

Plaintiff also argues that she is entitled to consider that a jury verdict in St. Clair County is more likely to adequately compensate her for her loss than a verdict rendered by a rural Arkansas or Oklahoma jury. It is correct to assert, as plaintiff does, that in making a decision as to which forum to choose she need not disregard this factor. However, as this court stated in Espinosa, “that factor is not one which we [as a court] may consider. [Citations.]” Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 123.

No one connected with plaintiff’s case resides in St. Clair County or in Illinois except her attorney. In Gilbert the Supreme Court noted that a similar situation existed in that case, stating, “No one connected with that side of the case save counsel for the plaintiff resides there ***” (in New York, where the case was filed). (Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 509, 91 L. Ed. 1055, 1063, 67 S. Ct. 839, 843.) The court did not view that fact as adding strength to the plaintiff’s choice of New York as a forum.

The defendant set forth in its motion and supporting documents filed in the circuit court that the site of the accident is 600 miles from Belleville, Illinois, the county seat of St. Clair County; that the trial would require the testimony of employee and nonemployee witnesses who reside near the site of the accident (and it set forth the names of four of these witnesses); that any necessary medical testimony would have to come from physicians in Oklahoma; that the nonemployee witnesses are not subject to subpoena by Illinois courts since they are not residents of this State; that if their testimony were to be introduced, it would have to be done by evidentiary depositions; and that the taking of discovery and evidentiary depositions of witnesses in Oklahoma would involve a substantial inconvenience and expense. The motion also alleged that in bringing employee witnesses from Oklahoma to Belleville for the purpose of the trial, these witnesses, because of the uncertainty of when their testimony would be needed, would be required to remain in Belleville for as long as a week and that the railroad would have to maintain these witnesses in Belleville for that period of time, as well as to pay their transportation and lost wages. The motion also alleged the inconvenience this causes to the witnesses and the disruption in their daily lives. The motion states that all the documentary records such as work records, earnings and train-movement records are in Oklahoma, where the plaintiff could have filed the suit. All of these facts stand unrebutted in the record and demonstrate that St. Clair County, Illinois, is not a convenient forum in which to try this case.

Plaintiff claims that the record is incomplete and that a forum non conveniens dismissal upon the record as it stands would unfairly penalize her as she had not yet commenced discovery. Plaintiff states that defendant’s motion to dismiss was premature and did not give her an opportunity to begin discovery. Plaintiff states in her brief and through counsel during oral argument that had she been given a chance to “make her record” on the forum non conveniens issue, we would find Illinois to be a convenient forum.

Defendant’s motion to decline jurisdiction was filed on January 22, 1981; however, it was not denied until May 12, 1982. Plaintiff had almost 16 months in which to conduct discovery if she so desired. She filed no pleading or document in opposition to the matters set forth in defendant’s motion and supporting affidavit. She did not request that the court defer ruling on the defendant’s motion until she had completed discovery. Her argument that she was disadvantaged is not convincing.

Plaintiff asserts in her brief that her theory of the case revolves around decisions made by the railroad’s management-level employees in the St. Louis office of the defendant company. Since St. Louis is only 13 miles from Belleville, plaintiff argues that St. Clair County is a convenient forum in which to try this case. This mere assertion will not overcome the content of the record. Plaintiff’s complaint alleges an occurrence in Muldrow, Oklahoma, resulting in the death of her husband, who had been employed by the defendant in Wagoner, Oklahoma. The complaint contains no allegation that anything connected with the decedent’s death occurred in Missouri. The defendant set forth in its motion the names and addresses of four people residing in Oklahoma, in addition to any employee witnesses, who could be witnesses at the trial and also the name of the medical center from which any medical testimony would come. Plaintiff has incorporated nothing in the record to show that the testimony of these witnesses will not be needed, and she incorporated nothing in the record with regard to her theory of the case revolving around occurrences in St. Louis or the names of any witnesses from St. Louis who would testify at the proceedings.

In Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, this court dealt with a similar factual situation. In that case the plaintiff’s decedent was killed in a railroad-crossing accident in Iowa. The plaintiff resided in Michigan, and the cause of action was ultimately filed in the circuit court of Rock Island County, Illinois, which is 200 miles from the site of the occurrence. In Adkins the court stated, “All of the factors normally considered thus point to the conclusion that Rock Island County is not an appropriate forum for the trial of this case.” (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 515.) In the case now before us the site of the occurrence is 600 miles from the forum, as compared to 200 miles in Adkins.

In Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843, the Supreme Court discussed the significance of the public interest factors, stating:

“Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.”

The simple recitation of these public interest factors weighs heavily against St. Clair County as the appropriate forum for this case.

Jury duty constitutes a burden to the citizens of a county who must serve on the jury. The county in which the trial is held is financially burdened by the payment of jurors’ fees and by providing court personnel and court facilities. The court system of this State is also burdened by the necessity to provide judicial personnel and the machinery for appellate review. Already this case has been considered by the circuit court of St. Clair County, the appellate court, and this court. There is no justification for imposing the burden of this litigation upon the judicial system of Illinois and of St. Clair County. If Illinois had any connection with the litigation such as the residence of the plaintiff, or the principal place of business of the defendant, or the situs of the accident, or of the decedent’s employment, it would have had an interest in providing a forum in which to resolve the dispute. Here, however, the chosen forum’s only connection with this case aside from a bare jurisdictional requirement is that it is the residence of the plaintiff’s attorney. In Cotton the majority opinion alluded to the fact that litigation filed in Illinois under such circumstances enhances the economic well-being of the Illinois lawyer and of the local medical specialists he employs. The courts of this State, however, do not exist for such purposes. As stated in the dissent in Cotton, “It is better, I think, to pass without comment the inference that the economic well being of the plaintiff’s lawyer and the doctors that his lawyer hired to examine him and to testify for him is a relevant consideration.” (Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144, 175-76 (Schaefer, J., dissenting).) We agree that these factors are not relevant in determining the motion to decline jurisdiction under the doctrine of forum non conveniens.

This court has also held that the fact that the defendant may be doing business in this State is not significant in determining whether to impose the obligation of trying the litigation upon the courts of Illinois. (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511.) In Jones v. Searle Laboratories this court noted that whether a company is doing business in Illinois is not the test, stating that, if it were, the defendant would be subject to suit in this forum regardless of the inconvenience. “This result is contrary to the purpose of the doctrine, which is to avoid litigation in an unduly inconvenient forum. [Citation.]” Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 377.

Finally, in terms of public interest factors, this court has considered it appropriate to consider the congested conditions of the docket in the court wherein the case has been filed. (Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 373; People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 111; Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514-15; Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill. 2d 1, 6.) The annual report of the Administrative Office of Illinois Courts shows that the number of cases filed in St. Clair County has increased from 44,762 filed in 1975 to 70,230 filed in 1980. The average time lapse between the filing of the complaint and verdict in law jury cases filed in St. Clair County has increased from 29.5 months in 1975 to 38.4 months in 1980. This is a substantial increase in the number of cases filed and in the time to verdict. This length of time from the filing of the complaint to verdict is far too long. It is apparent that the judicial system of St. Clair County should not be further burdened by importing cases with which that jurisdiction has no connection.

For the reasons set forth, we hold that the trial court abused its discretion when it refused to dismiss the instant matter based upon the doctrine of forum non conveniens. The order of the circuit court of St. Clair County is reversed and this cause is remanded to that court with directions to grant the defendant’s motion to decline jurisdiction and to dismiss this cause. Inasmuch as the statute of limitations on the cause of action involved in this case may have run, the dismissal order is to be conditioned on the waiver by the defendant of the defense of the statute of limitations should the plaintiff elect to file her case in an appropriate forum. If the defendant refuses to waive the defense of the statute of limitations, or if the defendant asserts that defense in a case filed by the plaintiff in an appropriate forum within one year from the date of dismissal based on the cause action asserted herein, then the plaintiff shall be given leave to reinstate this case in the circuit court of St. Clair County.

Reversed and remanded, with directions.


author: JUSTICE MORAN

text:
    (No. 56596.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. LESLIE BROWN, Appellee.

      Opinion filed October 21, 1983.

      Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael B. Weinstein, Assistant Attorney General, and Richard A. Devine, Michael E. Shabat, Michelle Grimaldi, Mary A. McKenzie, Joan S. Cherry, and Paula Carsentsen, Assistant State’s Attorneys, all of Chicago, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Defendant, Leslie Brown, was charged by complaint with violating section 4 — 102(a)(4) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1981, ch. 95½, par. 4— 102(a)(4)) for possessing an automobile with a removed and falsified vehicle identification number (VIN). Pursuant to defendant’s motion, the circuit court of Cook County dismissed the complaint on the ground that section 4 — 102(a)(4) violates due process and equal protection of the law under both the United States and Illinois constitutions (U.S. Const., amend. XIV, sec 1; Ill. Const. 1970, art. I, sec. 2). The State brought this direct appeal as a matter of right pursuant to Supreme Court Rule 603. 73 Ill. 2d R. 603.

The single question we address here is: Did the trial court err in finding section 4 — 102(a)(4) unconstitutional?

The complaint charged defendant with committing the offense of “False Manufactors [s-ic] Identification Number in that he possessed a motor vehicle, to wit: 72 Chev. 2 dr. Blue 111 QE5613 (no vin) on which the manufactors identification [sic] number had been removed and falsified and said Leslie Brown had no knowledge that said number had been falsified. ’ ’

Section 4 — 102 provides in pertinent part:

“(a) It is a violation of this Chapter for:
* * *
(4) A Person to buy, receive, possess, sell or dispose of a vehicle or any component part of a vehicle if the manufacturer’s identification number thereon has been removed or falsified, and such person has no knowledge that the number is removed or falsified;
* * *
(b) Sentence. A person convicted of a violation of this Section shall be guilty of a Class A misdemeanor.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 95½, pars. 4 — 102(a)(4), (b).)

Conviction of a Class A misdemeanor is punishable by imprisonment for any term less than one year. Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-3(a)(1).

Defendant admits the legislature has the authority to create absolute-liability offenses (see Ill. Rev. Stat. 1981, ch. 38, par. 4 — 9) but maintains this authority is subject to constitutional limitations (Smith v. California (1959), 361 U.S. 147, 4 L. Ed. 2d 205, 80 S. Ct. 215; Lambert v. Califonia (1957), 355 U.S. 225, 2 L. Ed. 2d 228, 78 S. Ct. 240; United States v. Marvin (8th Cir. 1982), 687 F.2d 1221). He argues it is arbitrary and unreasonable to impose a duty to inspect and verify the VIN on a mere possessor of a motor vehicle. It is his contention that “[t]he statute simply goes too far. Had it been limited to buyers, sellers, owners, etc., the instant case could never have been initiated.” He claims section 4— 102(a)(4) as applied to him violates due process of law, and is unconstitutional on its face. For this proposition he cites Bionic Auto Parts & Sales, Inc. v. Fahner (N.D, Ill. 1981), 518 F. Supp. 582, 586-87.

In Bionic, the plaintiffs challenged the validity of section 5 — 401(e) of the Code (Ill. Rev. Stat. 1979, ch. 95½, par. 5 — 401(e)) and Rule 5 — 401A promulgated thereunder by the Illinois Secretary of State. Section 5 — 401(e) provided for warrantless searches of businesses licensed to deal in used auto parts. It left the authority to make these searches to the discretion of enforcement officers and did not define regular enforcement procedures. The court held this section failed to meet the standards for administrative searches established in Donovan v. Dewey (1981), 452 U.S. 594, 69 L. Ed. 2d 262, 101 S. Ct. 2534, and was invalid under the fourth amendment.

The court also discussed the relationship between section 4 — 102(a)(4) of the Code and Rule 5 — 401A. Paragraph 1(G) of the rule required licensees like the plaintiffs to record whether any serial number or other identifying mark of the manufacturer had been altered, defaced or removed. The court emphasized that under section 4 — 102(a)(4), the plaintiffs could be held responsible even E they did not know the identEication number on an auto part had been removed or falsified. In the court’s view, this section, in not requiring knowledge, was an obvious drafting error. The court also expressed its doubt concerning the constitutionality of the statute as drafted. However, it indicated that as long as section 4— 102(a)(4) remained in the Code, the record-keeping requirement of Rule 5 — 401A, which would force a licensee to prove his own violation of section 4— 102(a)(4), clearly would pose fifth amendment problems. On this basis, the court held that paragraph 1(G) of Rule 5— 401A was invalid.

Defendant’s reliance in the instant case on Bionic is misplaced. There, the court was not required to decide the validity of section 4 — 102(a)(4). In expressing its doubt over the section’s constitutionality, the court overlooked the fact that the legislature can create offenses not requiring scienter. Moreover, the court’s conclusion that there was a drafting error made in the promulgation of section 4— 102(aX4) is not supported by a close analysis of Illinois law. We find the legislature expressly desired to remove knowledge as an element óf the offense. (Compare Ill. Rev. Stat. 1981, ch. 95½, par. 4 — 102(a)(4), with Ill. Rev. Stat. 1957, ch. 95½, par. 4 — 102(a)(4) In addition, an early vehicle code provision similar to section 4 — 102(aX4) was silent on the scienter element and the court held knowledge was not required under either the Federal or Illinois constitutions. People v. Billardello (1925), 319 Ill. 124. See People v. Johnson (1919), 288 Ill. 442; People v. Femow (1919), 286 Ill. 627.

Section 4 — 102(a)(4) specifically and clearly provides that a person commits the offense even though he has no knowledge the YIN is removed or falsified. Indeed, if he has such knowledge he commits a felony. See Ill. Rev. Stat. 1981, ch. 95½, pars. 4 — 103(a)(4), (b).

The other cases defendant cites which place constitutional limitations on the police power are inapposite to the instant case. Smith involved an absolute-liability statute which prohibited book sellers from possessing obscene books in their stores. The court held this statute was invalid because it conflicted with the constitutional rights of free speech and freedom of the press. No such rights are involved in the instant case.

Lambert involved a municipal ordinance requiring convicted felons to register with the police whenever they were going to be in the city for more than five days. In holding this ordinance unconstitutional, the court said there was no valid purpose under the police powers for the law other than merely enabling law-enforcement officials to compile a list of names and addresses of convicted felons. In Marvin, the statute at issue contained a knowledge requirement. Thus, the court concluded Congress did not intend to create an absolute-liability statute.

We find the instant case more analogous to a line of cases which have upheld statutes promoting public safety. For example, in United States v. Freed (1971), 401 U.S. 601, 28 L. Ed. 2d 356, 91 S. Ct. 1112, the defendant was indicted for possession of and conspiracy to possess unregistered hand grenades in violation of the National Firearms Act (26 U.S.C. sec. 5861(d) (Supp. V 1964)). One of the arguments the court addressed was the contention that the indictment failed because it did not allege the defendant’s scienter. The court said the law, although silent on the requirement of scienter, was a regulatory measure in the interest of public safety. As such, it did not require specific intent or knowledge by the defendant that the hand grenades were unregistered. See also United States v. Dotterweich (1943), 320 U.S. 277, 88 L. Ed. 48, 64 S. Ct. 134; United States v. Balint (1922), 258 U.S. 250, 66 L. Ed. 604, 42 S. Ct. 301.

The statute involved in the instant case similarly falls in the category of regulatory measures designed to promote the public welfare and safety. Section 4 — 102(a)(4) was enacted as part of a general statutory scheme entitled “Anti-theft Laws.” The broad purpose of this scheme “is to protect automobile owners against theft and to protect the general public against the commission of crimes involving stolen automobiles. (People v. Billardello (1925), 319 Ill. 124, 125-26.)” (People v. One 1979 Pontiac Grand Prix Automobile (1982), 89 Ill. 2d 506, 510.) We referred to section 4 — 102(a)(4) in One 1979 Pontiac Grand Prix Automobile and noted that this statute “making it an offense to have possession of an automobile bearing an altered, defaced or destroyed identification number has been upheld as a valid exercise of the police power. [Citations.]” 89 Ill. 2d 506, 511.

In determining the constitutionality of such statutes, this court has said:

“To constitute a legitimate exercise of the police power, [the] legislative enactment must bear a reasonable relationship to the public interest intended to be protected, and the means adopted must be a reasonable method of accomplishing the desired objective. [Citations.] Once the legislature determines that a problem exists and acts to protect and promote the general welfare of its citizens, the legislation is presumed to be a valid exercise of the State’s police power. [Citation.] Furthermore, the due process clauses of the State and Federal constitutions, insofar as they operate to limit the exercise of the State’s police power, prohibit only its arbitrary or unreasonable use.” Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 453.

Section 4 — 102(a)(4) requires every owner or possessor of a motor vehicle to determine whether the vehicle’s VIN has been removed or falsified. Through this section, the legislature has intended to curtail motor vehicle thefts as well as “chop shop” and “retag” operations. It has placed the burden of determining the authenticity of the VIN on possessors as well as owners and sellers in an attempt to inhibit both the profitability of the illegal stolen car market and the ease with which stolen automobiles and their parts are sold.

In its opinion, placing liability on owners, sellers, and buyers alone would not adequately address the problem. It also found it necessary and important to dissuade possessors of vehicles from participating in these illegal activities. In doing so, the legislature has made the determination that preventing the above-stated evils outweighs the possible injustice of imposing criminal penalties against a mere possessor of a vehicle having a falsified or removed VIN. Given the steady rise in stolen motor vehicles and their parts and the multitude of problems related thereto (see Pub. Act 82 — 984, 1982 Ill. Laws 2467), we do not believe this provision is an arbitrary or unreasonable use of the police power. See People v. Billardello (1925), 319 Ill. 124; People v. Johnson (1919), 288 Ill. 442.

We find what was said in Johnson regarding a similar due process and equal protection argument applicable here:

“It is contended by plaintiff in error that one might be guilty under this act by having a car in his possession from which the numbers had been removed without his knowledge. The constitution does not require that scienter be a necessary element of any law where an offense is malum prohibitum. One may violate the law without any intent on his part to do so. [Citations.] Various statutes of this State punishing the doing of acts without requiring allegation or proof of criminal intent upon the part of the doer have been upheld on the ground that they were a valid exercise of the police power. [Citations.] *** Laws can not be held invalid merely because some innocent person may possibly suffer. The principle of police regulation is, ‘the greatest good to the greatest number.’ ” 288 Ill. 442, 445-46.

The State also asks this court to grant it costs, including $50 for this appeal and $25 for its participation in the oral argument. Such fees are “taxed as costs to be collected from the defendant, if possible, upon conviction.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 53, par. 8.) Moreover, an offender is to pay the costs of prosecution “[w]hen [he] is convicted of an offense under any statute.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 180—3.) Since defendant has not been convicted in this case, the State’s request at this stage of the proceedings is premature.

For the reasons stated, the order of the circuit court dismissing the complaint is reversed and the cause is remanded to that court for further proceedings.

Reversed and remanded.


author: JUSTICE "WARD

text:
    (No. 56773.
    MATERIAL SERVICE CORPORATION, Appellant, v. THE DEPARTMENT OF REVENUE, Appellee.

      Opinion filed October 21, 1983.

    Rehearing denied December 2, 1983.

      Richard R. Elledge and Louis R. Hegeman, of Gould & Ratner, of Chicago, for appellant.

      Tyrone C. Fahner, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE "WARD

delivered the opinion of the court:

This appeal involves the review of an administrative decision by the defendant, the Department of Revenue (Department), that the plaintiff, the Material Service Corporation, is liable under the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 440 et seq.) on minimum load charges uniformly collected on small sales of ready-mix concrete. The defendant issued a final deficiency tax assessment for taxes, penalties and interest in the amount of $25,301.58, covering the period from July 1973 through December 1976. The circuit court of Cook County on administrative review vacated the final assessment. The appellate court reversed the judgment of the circuit court (105 Ill. App. 3d 74), and we granted the plaintiff’s petition for leave to appeal (87 Ill. 2d R. 315).

The plaintiff is in the business of manufacturing and selling ready-mix concrete. The concrete is mixed and delivered by trucks with rotating drums having a maximum capacity of 10 cubic yards. The concrete is sold at a uniform price per cubic yard. In addition, a fixed “minimum load charge” of $27 is charged on all sales of less than five cubic yards per truck.

On April 27, 1966, the Department issued a letter ruling in response to the plaintiff’s inquiry concerning the liability for tax on the minimum load charge under the Retailers’ Occupation Tax Act. This ruling in part stated:

“In reply to your request for a ruling concerning minimum load charges *** which are separately contracted for and separately charged, please be advised that they are excludable in the computation of retailers’ occupation tax.”

On December 8, 1977, the Department issued a notice of tax liability assessing a deficiency with respect to approximately 12,500 minimum load charges collected by the plaintiff between July 1973 and December 1976. After an administrative hearing requested by the plaintiff, the hearing officer held in favor of the Department, concluding that it was not bound by its letter ruling, and on March 29, 1979, the Department issued a final assessment.

The plaintiff filed a complaint in the circuit court for administrative review, and on January 11, 1980, the circuit court entered a final order sustaining the imposition of the tax on the minimum load charges. The record contains the affidavit of Francis R Burke, the plaintiffs general sales manager, which stated that the minimum load charge is related to the cost of providing drivers and maintaining vehicles in supplying minimum loads. Considering the affidavit, the court held that the charge is part of the transportation cost of delivering concrete and thus includable in the total cost of manufacture. The court noted that article III, section 3, of the Department’s Rules and Regulations provides that, “[i]n computing retailers’ occupation tax liability, no deduction shall be made by a taxpayer from gross receipts or selling prices on account of *** freight or transportation costs.” The plaintiff’s motion to vacate was denied, but after considering a motion by the plaintiff to reconsider, the court entered an amended final order on October 17, 1980. In it the court reaffirmed its holding that the minimum load charges are not excludable from gross receipts in determining the retailers’ occupation tax, but it judged that the Department was bound by its letter ruling which, the court said, was relied upon by the plaintiff. Accordingly, the court vacated its January 11, 1980, order sustaining the tax and final assessment against the plaintiff.

The Department appealed from that part of the amended final order which set aside the January 11, 1980, order allowing the final assessment against the plaintiff. The plaintiff filed a cross-appeal from the part of the order affirming that the minimum load charges are not excludable from gross receipts and are taxable.

Considering later that a cross-appeal was not necessary to preserve its contention, the plaintiff, in one of the briefs it filed in the appellate court appeal, stated that it was withdrawing its cross-appeal. Both the appellant’s and the appellee’s briefs, however, did discuss the issue the plaintiff raised on the cross-appeal. Although noting that the plaintiff had not formally moved for withdrawal of its cross-appeal and that no order dismissing it had been entered, the appellate court refused to consider whether the circuit court erred in finding that the minimum load charges were subject to taxation. The appellate court held that the minimum load charges had not been separately contracted for and thus the terms of the Department’s letter ruling that minimum load charges would be excludable were not met. Under such circumstances, the deficiency assessment imposed on the plaintiff was proper, the appellate court held.

A party cannot complain of error which does not prejudicially affect it, and one who has obtained by judgment all that has been asked for in the trial court cannot appeal from the judgment. (Hillmer v. Chicago Bank of Commerce (1940), 375 Ill. 266; People ex rel. Jones v. Adams (1976), 40 Ill. App. 3d 189; In re Estate of Trapani (1959), 21 Ill. App. 2d 19.) “It is fundamental that the forum of courts of appeal should not be afforded to successful parties who may not agree with the reasons, conclusion or findings below.” (Illinois Bell Telephone Co. v. Illinois Commerce Com. (1953), 414 Ill. 275, 282-83; see N-Ren Corp. v. Illinois Commerce Com. (1981), 98 Ill. App. 3d 1076.) It cannot be said that the plaintiff waived the question of whether minimum load charges are taxable by withdrawing its cross-appeal. Here the plaintiff sought reversal of the administrative decision imposing the deficiency assessment. Although the circuit court said that the minimum load charges were ordinarily taxable, they were not to be taxed in this factual situation, and the court granted all of the requested relief. Under such circumstances, and contrary to what the Department contends, it was unnecessary for the plaintiff to file a cross-appeal. (See Kerner v. State Employees’ Retirement System (1977), 53 Ill. App. 3d 747.) It is the judgment and not what else may have been said by the lower court that is on appeal to a court of review. (Rabus v. Calcari (1959), 16 Ill. 2d 99; Gould v. Gould (1951), 408 Ill. 526.) The reviewing court is not bound to accept the reasons given by the trial court for its judgment (Weber v. Woods (1975), 31 Ill. App. 3d 122), and the judgment may be sustained upon any ground warranted, regardless of whether it was relied on by the trial court and regardless of whether the reason given by the trial court was correct. (Monarski v. Greb (1950), 407 Ill. 281; Bullman v. Cooper (1936), 362 Ill. 469; 5A C. Nichols, Illinois Civil Practice sec. 5663 (1975 rev. vol.).) Findings of the trial court adverse to the appellee do not require the appellee’s cross-appeal if the judgment of the trial court was not at least in part against the appellee.

The defendant notes, however, that it has been held that “where a general decision for the appellee contains a specific finding unfavorable to him and he fails to file a cross-appeal, the adverse finding is not properly before the reviewing court.” (Cleys v. Village of Palatine (1980), 89 Ill. App. 3d 630, 635; Village of Arlington Heights v. National Bank (1977), 53 Ill. App. 3d 917.) The appellate court here cited Cleys in refusing to consider the issue raised in the cross-appeal. All of these opinions rely on City of Wilmington v. Industrial Com. (1972), 52 Ill. 2d 587, for support. In Wilmington, however, the circuit court had denied a claim for interest but otherwise upheld the compensation award for the appellee. This court held that the appellee’s failure to cross-appeal from the part of the judgment denying the claim for interest precluded consideration of the issue. Different from Wilmington, no part of

the judgment here was adverse to the plaintiff. The appellate court should have considered the plaintiff’s contention that the circuit court erred in finding that the minimum load charges were subject to the retailers’ occupation tax.

Section 2 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 441), with several exceptions not relevant here, imposes a tax “upon persons engaged in the business of selling tangible personal property at retail ***.” Section 1 of the Act (Ill. Rev. Stat. 1977, ch. 120, par. 440) provides the following definitions:

“ ‘Sale at retail’ means any transfer of the ownership of or title to tangible personal property to a purchaser, for the purpose of use or consumption, *** for a valuable consideration ***.
* * *
‘Selling price’ or the ‘amount of sale’ means the consideration for a sale *** determined without any deduction on account of the cost of the property sold, the cost of materials used, labor or service cost or any other expense whatsoever ***.
**#
‘Gross receipts’ from the sales of tangible personal property at retail means the total selling price or the amount of such sales, as hereinbefore defined.”

It is the plaintiff’s contention that the minimum load charge is a fee separate from the selling price of a load of concrete and should not be includable in gross receipts taxable under the Act. The plaintiff characterizes the charge as “an additional fee which operates to discourage separate deliveries of small quantities of a bulk product. It provides a negative inducement.” The “somewhat arbitrary” charge, the plaintiff says, “looks more like a penalty than anything else.” The Department argues that the charge is an inseparable part of a single transaction — the sale and delivery of pre-mixed concrete. As stated earlier, there was evidence that the charge is related to the cost of providing drivers and maintaining the ready-mix trucks. The Department contends that the minimum load charge is part of the transportation cost of delivering concrete which is includable in the total cost of manufacture.

We agree with the Department’s position. It is not disputed that concrete must be delivered in a ready-mix truck so as to maintain a uniform mixture and to prevent it from hardening prior to use. In Gapers, Inc. v. Department of Revenue (1973), 13 Ill. App. 3d 199, it was held that where the delivery of goods sold was indispensable to the completion of the sale, and not merely incidental, delivery charges are part of the cost of doing business and may not be deducted from gross receipts for purposes of the retailers’ occupation tax. The plaintiff attempts to distinguish Gapers, saying that the charge is imposed because of the amount of concrete being transported and not because of the transportation. This argument fails, since the charge is based on the cost of providing drivers to transport the concrete. That Material Service waives or chooses to “absorb” that cost in case of large, and more profitable, sales of concrete is not determinative.

The plaintiff’s suggestion that the charge is similar to the “fixed fee” at issue in Chet’s Vending Service, Inc. v. Department of Revenue (1978), 71 Ill. 2d 38, is not convincing. In Chet’s Vending, the plaintiff contracted with employers to provide vending services to their employees. The employers paid a fixed fee for this service which was not linked to the sale of food or other tangible goods to employees. The plaintiff paid retailers’ occupation tax on the compensation received from the employees on the purchase of food and other goods. This court held that the contract with employers to provide vending services was separate from the individual sales of food for consumption and that the fixed fee was not taxable under the Act. Here the minimum load charge was an inseparable part of the sales of concrete.

We need not address the question of whether the letter ruling was binding on the Department since, as the appellate court showed, conditions or terms of the ruling were not satisfied. “It shall be presumed that all sales of tangible personal property are subject to tax under [the Retailers’ Occupation Tax] Act until the contrary is established, and the burden of proving that a transaction is not taxable hereunder shall be upon the person who would be required to remit the tax to the Department if such transaction is taxable.” (Ill. Rev. Stat. 1977, ch. 120, par. 446.) The plaintiff has not met its burden of proving that the minimum load charge was separately contracted for. The plaintiff’s contention that the Department conceded at the evidentiary hearing that there were separate contracts is plainly wrong. The Department’s auditor stated at the hearing that “whether or not the minimum load was actually separate from the bill and whether it was separately contracted for, I don’t know whether this is true or not, so I can’t say whether it was or wasn’t.” This comment of a witness cannot be read to mean that the Department acknowledged that there had been separate contracts.

That minimum load charges were part of all concerned sales appears clear. The plaintiff’s citation in its reply brief of a single instance, out of approximately 12,500 transactions, in which the minimum load charge was not imposed on a sale of less than five cubic yards seems to be strong evidence that the charge was collected on “all” minimal load deliveries. The charge was required for the sale and delivery of all purchases of less than five cubic yards, and it cannot be said that there were separate contractual relationships. See Fontana D’Or, Inc. v. Department of Revenue (1976), 44 Ill. App. 3d 1064; Cohen v. Playboy Clubs International, Inc. (1974), 19 Ill. App. 3d 215.

For the reasons given, the judgment of the appellate court is affirmed.

Judgment affirmed.