dissenting:
In this case, the plaintiff was grievously injured nearly nine years ago, and a costly seven-week trial was followed by costly and time-consuming appeals. Since I believe that neither justice nor public policy will be served by ordering a new trial on a close question of venue, I respectfully dissent. This dissent is based on my disagreement with the majority’s interpretation of the venue statute. We have not determined the validity of the damage award rendered by the jury.
The defendant’s business is essentially the manufacture and distribution of farm machinery, and it is reasonable to assume that a firm of this size will not market all of its machinery through its own business outlets. Harvester must rely on independent distributors for an effective distribution network, and the independent distributors in St. Clair County served this function. The record reveals that gross sales to the retailers in St. Clair County totaled $2.6 million for the year 1976-77. Harvester field representatives visited St. Clair County regularly to assist the dealers in marketing Harvester products. Harvester reimbursed the dealers for one-half of their advertising costs, thus assuring that the “IH” logo would be prominently displayed in St. Clair County. The majority has determined that Harvester can market its goods in St. Clair County advertise in St. Clair County, and earn substantial profits in St. Clair County, yet enjoy immunity from legal proceedings in that county. I believe this is a misinterpretation of the Illinois venue statute (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 101).
I have difficulty resolving the inconsistencies between two major venue decisions by this court. In Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, this court issued a writ'of mandamus directing the defendant, as judge of the circuit court of Madison County, to enter an order transferring a disputed case from Madison County to a county of proper venue. In International Harvester Co. v. Goldenhersh (1981), 86 Ill. 2d 366, this court declined to issue a writ of mandamus, and allowed a lawsuit against International Harvester to proceed in St. Clair County. The court noted:
“Five independent retail dealers which sell petitioner’s products are located in St. Clair County. Petitioner reimburses the dealers for half of their advertising expenses. Various sales representatives, who are employees of petitioner, regularly visit the dealers to provide a wide range of assistance and service. Two of the dealers lease computer terminals from petitioner which link them to petitioner’s warehouse for automatic inventory control and reorder of spare parts. ***
*** Dealer contracts, which are entered into with petitioner annually in St. Clair County, give petitioner the right to review dealer performance. Dealers are required to honor warranties on petitioner’s products, and services performed by the dealers under such warranties are reimbursed by petitioner. Each dealer sells petitioner’s spare parts, which are delivered regularly by petitioner in St. Clair County.” 86 Ill. 2d 366, 371.
I realize that International Harvester Co. v. Goldenhersh left open the possibility that a venue determination could be made by the “normal process of appeal” (86 Ill. 2d 366, 373), but I believe that the disposition of the case at bar in light of this court’s determination in International Harvester is not fair and reasonable. International Harvester involved the same corporation, the same trial judge, and the same venue question as Stambaugh. The appellate court relied heavily on International Harvester in deciding the venue question in Stambaugh. (Compare the language in Stambaugh (106 Ill. App. 3d 1, 18) with the language in International Harvester (86 Ill. 2d 366, 373).) I believe such inconsistent signals only exacerbate the problem of crowded dockets and interminable appeals which vex our judicial system. See generally Comment, Mandamus and Venue, 4 Am. J. Trial Advocacy 392 (1980).
The majority opinion notes that Harvester’s business in St. Clair County constituted approximately 5/100ths of 1% of Harvester’s annual sales in 1976. Harvester is an enormous company, and I believe that the total sales of $2.6 million are a more accurate yardstick of the term “doing business” than the percentage of total sales in one county. Harvester sells products all over the world, so it is not surprising that the $2.6 million sales figure is a minute percentage of its gross sales.
I do not agree with the majority’s characterization of Harvester’s activities in St. Clair County as “incidental.” Harvester’s products have been marketed and used for many years in St. Clair County, and such operations are not incidental to some other activity that keeps Harvester in business. See generally Clermont, Restating Territorial Jurisdiction and Venue for State and Federal Courts, 66 Cornell L. Rev. 411 (1981); Note, Doing Business as a Test of Venus and Jurisdiction Over Foreign Corporations in the Federal Courts, 56 Colum. L. Rev. 394 (1956).
The majority implies that it would be “oppressive and unbearably costly” for Harvester to defend this suit in St. Clair County. I believe that this argument is more persuasive when made on behalf of the plaintiff. In this case, the plaintiff sustained severe bums over 45% of his body. He could not work for a year and a half, and he suffered a stroke as a result of the original injuries. I believe it could be “oppressive and unbearably costly” to try this case a second time. It appears that venue would be proper in Sangamon, ■ Will, DeKalb and Cook counties. St. Clair County is within 100 miles of the scene of the accident, and most of the witnesses reside near St. Clair County. I believe it is unfair to overturn this jury verdict and start all over again in a potentially distant forum. The bread and butter of Harvester is the distribution of farm equipment. Harvester maintains offices in Cook County for convenience, but its products are clearly designed for use in agricultural areas such as St. Clair County. To rule that venue is proper where Harvester’s corporate offices are located, but not in an agricultural county where its products are sold and used, is a distortion of the venue statute.
I am convinced that justice will not be served by a second trial for an additional reason; the plaintiff’s wife was substituted as special administrator during the pendency of this appeal and it can be assumed that he will not be available to testify in a second trial. The action will proceed, if at all, on behalf of Stambaugh’s widow, as special administrator of his estate. Since this case turns on the factual events leading up to the burning of the plaintiff, his absence at a second trial will make it more difficult to establish the liability of the defendant. A cold transcript, read to the jury, will not have the same impact as the live testimony of the plaintiff, where his credibility and demeanor can be gauged in open court. In light of these facts, I am even more reluctant to set aside this jury verdict.
We must be mindful of the impact of overturning this jury verdict at such a late date. Public policy demands that each legal controversy must come to an end, and society’s interests are not served by endless litigation spanning two decades. A second trial and the inevitable appeals will consume several years and it could be 1989 or 1990 before the litigation ends. If the majority believes that this holding will discourage lawsuits in plaintiff-oriented counties such as Madison and St. Clair, we should avoid making individuals pay a tremendous personal cost for such a determination. We should also be extremely wary of overturning jury verdicts on close questions of venue years after the tumult and shouting of the trial have ended.
I respectfully dissent.
JUSTICE SIMON joins in this dissent.