NO. 4-02-0437

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

ROBERT W. HUTTON,

	Plaintiff-Appellee,

          v.

CONSOLIDATED GRAIN AND BARGE COMPANY,

a Corporation; and CONSOLIDATED GRAIN

AND BARGE COMPANY AT NAPLES, a

Corporation,

	Defendants-Appellants.	)

)

)

)

)

)

)

)	Appeal from

Circuit Court of

Scott County

No. 01L2

Honorable

Ronald F. Robinson,

Judge Presiding.

_________________________________________________________________

MODIFIED ON DENIAL OF REHEARING

	JUSTICE TURNER delivered the opinion of the court:

	In July 2001, plaintiff, Robert W. Hutton, filed an

action against defendants, Consolidated Grain and Barge Company,

a corporation, and Consolidated Grain and Barge Company at

Naples, a corporation, seeking relief under the federal Jones Act

(46 U.S.C. app. §688 (2000)).  Defendants filed a jury demand,

plaintiff moved to strike it, and the trial court granted the

motion.  In April 2002, the trial court made a finding under

Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) that no just

reason existed to delay appeal of its order granting plaintiff's

motion to strike defendants' demand for a trial by jury but also

stated the following question was certified for appeal (see 155

Ill. 2d R. 308(a)):  whether defendants, on proper demand, are

entitled to a jury trial on a Jones Act case in the Illinois

courts.  Defendants appeal, arguing (1) their right to trial by

jury is governed by Illinois law and guaranteed by the Illinois

Constitution, (2) Congress has expressed an intent to extend the right to trial by jury to defendants in Jones Act cases, and (3)

the striking of defendants' jury demand violates the equal

protection clauses of the United States and Illinois Constitu

tions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2). 

We answer the trial court's question in the affirmative and

remand.

			I. BACKGROUND

	In July 2001, plaintiff filed a complaint alleging

negligence pursuant to the Jones Act and general maritime law and

unseaworthiness pursuant to general maritime law and for damages

pursuant to the Longshoremen's and Harbor Worker's Compensation

Act (33 U.S.C. §905(b) (2000)).  The Jones Act was passed to extend to seamen the same rights that had been extended to

railroad workers in the Federal Employers' Liability Act (FELA)

(45 U.S.C. §§51 through 60 (2000)) (Panama R.R. Co. v. Vasquez, 271 U.S. 557, 559-60, 70 L. Ed. 1085, 1087, 46 S. Ct. 596, 596

(1926)) and expressly incorporates by reference the rights and

remedies of FELA.  See 46 U.S.C. app. §688(a) (2000) ("in such

action all statutes of the United States modifying or extending

the common-law right or remedy in cases of personal injury to

railway employees shall apply").  In August 2001, defendants

filed a notice of removal to the United States District Court for

the Central District of Illinois.  In January 2002, the United

States District Court remanded the case to the Illinois circuit

court for Scott County.  Hutton v. Consolidated Grain & Barge Co., No. 01-3272 (C.D. Ill. January 18, 2002) (remand order).  In February 2002, defendants filed their answer to plaintiff's

complaint and a demand for a trial by jury.  In February 2002,

plaintiff filed a motion to strike defendants' jury demand.  In

April 2002, the trial court granted plaintiff's motion to strike

defendants' jury demand and made an express written finding

pursuant to Rule 304(a) (155 Ill. 2d R. 304(a)) of no just reason

for delaying appeal.  This appeal followed.

II. ANALYSIS

A. Jurisdiction

	We first address whether this court has jurisdiction. 

See In re C.B., 322 Ill. App. 3d 1011, 1012, 750 N.E.2d 1271, 1272 (2001) (appeal dismissed for lack of jurisdiction).  Defen

dants failed to include in their brief a statement of jurisdic

tion as required by Supreme Court Rule 341(e)(4) (188 Ill. 2d R.

341(e)(4)).  However, failure to provide a statement of jurisdic

tion is not fatal because it is not a necessary component of our

jurisdiction.  Luttrell v. Panozzo, 252 Ill. App. 3d 597, 600, 625 N.E.2d 695, 697 (1993).  Defendants apparently bring this

appeal pursuant to Rule 304(a) (155 Ill. 2d R. 304(a)), allowing

appeals from final judgments as to fewer than all claims if the

trial court "has made an express written finding that there is no

just reason for delaying either enforcement or appeal or both." 

The trial court's written finding is insufficient to confer

jurisdiction on this court because the court's order denying

defendants' motion for jury trial does not terminate the litiga

tion between the parties on the entire controversy or a separate part thereof.  "Rule 304(a) requires full resolution of an entire

claim *** prior to appeal."  Davis v. Loftus, 334 Ill. App. 3d 761, 769, 778 N.E.2d 1144, 1151 (2002).

	This appeal could have been brought pursuant to Supreme

Court Rule 308 (155 Ill. 2d R. 308) permitting interlocutory

appeals by permission.  Rule 308(a) provides, in pertinent part,

as follows:

		"When the trial court, in making an

interlocutory order not otherwise appealable,

finds that the order involves a question of

law as to which there is substantial ground

for difference of opinion and that an immedi

ate appeal from the order may materially

advance the ultimate termination of the liti

gation, the court shall so state in writing,

identifying the question of law involved." 

155 Ill. 2d R. 308(a).

The trial court's April 29, 2002, order stated: 

	"The issue certified for appeal is whether

[d]efendant[]s, upon proper demand, are enti

tled to a jury trial in a Jones Act case

filed in state court."  

It appears the court's intent was to make a finding pursuant to 

Rule 308.  We will therefore consider the trial court's Rule 304

order as the statement prescribed by Rule 308.  See People v. Kruger, 327 Ill. App. 3d 839, 843, 764 N.E.2d 138, 141 (2002) (effect of trial court's order, not its label, is controlling). 

Because we find substantial grounds for a difference of opinion

on the question of a defendant's right to jury trial in Illinois

in an action brought under the Jones Act, we allow the appeal.

	B. The Treatment of Jones Act

Jury Trial Claims in Illinois

	Defendants argue the Jones Act does not deny a defen

dant in a Jones Act case the right to a jury trial, nor does it

confer that right exclusively to the plaintiff.  Plaintiff argues

the substantive law of the Jones Act gives only the plaintiff the

right to demand a jury trial.  The Jones Act provides, in perti

nent part:  "Any seaman who shall suffer personal injury in the

course of his employment may, at his election, maintain an action

for damages at law, with the right of trial by jury."  46 U.S.C.

app. §688(a) (2000).  The Fifth District, in Allen v. Norman Brothers, Inc., 286 Ill. App. 3d 1091, 1096, 678 N.E.2d 317, 321 (1997), appeal denied, 174 Ill. 2d 553, 686 N.E.2d 1157 (1997), held "[u]nder federal courts' interpretations of the Jones Act, a

defendant has no right to a trial by jury."  The Fifth District relied on decisions of the Ffifth and Nninth Ccircuit Ccourts.  The

United States Court of Appeals for the Fifth Circuit held "the

Jones Act gives only the plaintiff the right to choose a jury

trial."  Rachal v. Ingram Corp., 795 F.2d 1210, 1212 (5th Cir. 1986); see also Linton v. Great Lakes Dredge & Dock Co., 964 F.2d 1480, 1490 (5th Cir. 1992).  The Ninth Circuit agreed, holding "[t]he plain language of the Jones Act gives a plaintiff the option of maintaining an action at law with the accompanying right to a jury trial" with "no mention of a defendant."  (Empha

sis in original.)  Craig v. Atlantic Richfield Co., 19 F.3d 472, 476 (9th Cir. 1994).  

	Craig, 19 F.3d at 475-76, merely adopted the Fifth Circuit's reasoning in Rachal.  In Rachal, the court held Federal Rule of Civil Procedure 39(a) (Fed. R. Civ. P. 39(a)) did not

preclude a Jones Act plaintiff's withdrawal of a jury demand and

proceeding in admiralty.  Rachal, 795 F.2d at 1217.  The Rachal court did state "that the Jones Act gives only the plaintiff the

right to choose a jury trial" (Rachal, 795 F.2d at 1212), but that statement was made in the context of a nondiversity action

in federal court.  Rachal, 795 F.2d at 1213.  Where, however, "there is diversity jurisdiction in Jones Act cases, both parties

have an independent basis for a jury trial if the plaintiff has chosen to pursue his Jones Act claim through the 'saving to

suitors' clause in a civil action."  (Emphasis in original.) 

Rachal, 795 F.2d at 1213.  (The "saving to suitors" clause provides "district courts shall have original jurisdiction,

exclusive of the courts of the [s]tates, of:  (1) [a]ny civil

case of admiralty or maritime jurisdiction, saving to suitors in

all cases all other remedies to which they are otherwise enti

tled."  28 U.S.C. §1333 (2000).)  Following Rachal, the Fifth Circuit decided Linton, where the issue before the court was whether a state law denying trial by jury in suits in an admi

ralty or general maritime claim brought in state court under the

"saving to suitors" clause converted the claim into one within the exclusive admiralty jurisdiction of the federal court. 

Linton, 964 F.2d at 1482-83 & n.1.  The court held the state law did not convert the claim to one in admiralty, stating "we see no

Article III [(U.S. Const., art. III)], [s]eventh [a]mendment

[(U.S. Const., amend. VII)] or federal statutory bar that denies

the Jones Act plaintiff in state court the right to a non[]jury

trial if state procedure allows it."  (Emphasis added.)  Linton, 964 F.2d at 1490.

	Neither Craig, Rachal, nor Linton expressly states that only the plaintiff in a Jones Act case filed in state court has

the right to elect trial by jury.  The Fifth District of our

appellate court relied on Craig and Rachal for its holding "[t]he Jones Act provides [the right to trial by jury] only to the

plaintiff/seaman."  Allen, 286 Ill. App. 3d at 1096, 678 N.E.2d at 321.  In Allen, the defendant, as do defendants here, argued the Illinois Constitution guarantees him a right to trial by jury

(Ill. Const. 1970, art. I, §13), even in a Jones Act case. 

Allen, 286 Ill. App. 3d at 1095, 678 N.E.2d at 320.  The court held that because a Jones Act claim is "a statutory proceeding

unknown to the common law" (Allen, 286 Ill. App. 3d at 1096, 678 N.E.2d at 320), "the provisions of the statute govern whether and

to what extent there is a right to a jury trial" (Allen, 286 Ill. App. 3d at 1096, 678 N.E.2d at 321), and "[t]he *** [a]ct pro

vides such a right only to the plaintiff/seaman" (Allen, 286 Ill. App. 3d at 1096, 678 N.E.2d at 321).  We disagree.  	

	C. Statutory Construction of the Jones Act

	The primary rule of statutory construction is to ascertain and give effect to legislative intent, the best indica

tion of which is the plain and ordinary meaning of the language

used.  In re Detention of Lieberman, 201 Ill. 2d 300, 307-08, 776 N.E.2d 218, 223 (2002).  A statute is to be read and considered

as a whole such that each section of the statute is examined in

relation to other sections.  Burgess v. Board of Fire & Police Commissioners, 275 Ill. App. 3d 315, 321, 655 N.E.2d 1157, 1161 (1995).  Because our decision today involves the construction of

a statute, the question before us is one of law, and our review

is de novo.  People v. Robinson, 172 Ill. 2d 452, 457, 667 N.E.2d 1305, 1307 (1996).  Under the last antecedent doctrine (sometimes

called the last preceding antecedent doctrine), relative or

qualifying words or phrases in a statute serve only to modify

words or phrases that are immediately preceding and do not modify

those that are more remote.  People v. Davis, 199 Ill. 2d 130, 138, 766 N.E.2d 641, 645 (2002).

	The Jones Act does not explicitly state only the

plaintiff may elect a trial by jury.  This would be true if the

"election" referred to in the statute was the election of trial

by jury.  Here, the phrase "at his election" modifies "may ***

maintain an action for damages at law."  46 U.S.C. app. §688(a)

(2000).  (Prior to the enactment of the Jones Act, seamen were

without a remedy in damages for negligence beyond their cure and

maintenance, unless the injury was a consequence of the

unseaworthiness of the ship or a defect in its equipment.  Allen, 286 Ill. App. 3d at 1094, 678 N.E.2d at 319, citing Warner v. Goltra, 293 U.S. 155, 157-58, 79 L. Ed. 254, 256-57, 55 S. Ct. 46, 47-48 (1934).)  The phrase "with the right of trial by jury"

is separated from the modifying phrase "at his election" by "maintain an action for damages at law."  46 U.S.C. app. §688(a)

(2000).  Therefore, under rules of statutory construction, the

election referred to is not the election of a trial by jury.  The

seaman's election is to proceed in law rather than in admiralty. 

See Vasquez, 271 U.S. at 560, 70 L. Ed. at 1087, 46 S. Ct. at 597  ("the procedural provisions [of the Jones Act] have been con

strued *** to mean that the new substantive rights may be as

serted and enforced either in actions in personam against the employers in courts administering common-law remedies *** or in

suits in admiralty").  The "new substantive right" created by the

Jones Act was the right to recover damages for the negligence of

an employer beyond maintenance and cure, not the right to exclu

sive election of trial by jury.  The right to trial by jury is

merely an incident of proceeding at law (see Panama R.R. Co. v. Johnson, 264 U.S. 375, 391, 68 L. Ed. 748, 754, 44 S. Ct. 391, 395 (1924) ("the injured seaman is permitted, but not required,

to proceed on the common[-]law side of the court with a trial by

jury as an incident")), whereas there is no right to a jury in a proceeding in admiralty (see Vasquez, 271 U.S. at 560, 70 L. Ed. at 1087, 46 S. Ct. at 597).

		Based on our construction of the statute, we conclude

the Jones Act does not limit the right to trial by jury to the

plaintiff only.  Procedural rules in a Jones Act claim are

governed by the forum in which the claim is filed.  When filed in

admiralty, no party has a right to a jury trial.  See Vasquez, 271 U.S. at 560, 70 L. Ed. at 1087, 46 S. Ct. at 597.  When filed

on the law side of the federal court, the right to a jury trial

as interpreted by the federal courts attaches (see Linton, 964 F.2d at 1490 ("the Jones Act plaintiff can elect a non[]jury

trial in federal court *** by grounding his suit on federal

question jurisdiction *** and not requesting a jury")), and in

state court any right to jury trial (or nonjury trial) is gov

erned by state law (see Linton, 964 F.2d at 1490 (a Jones Act plaintiff in state court has the "right to a non[]jury trial if

state procedure allows it"); Dice v. Akron, Canton & Youngstown R.R. Co., 342 U.S. 359, 363, 96 L. Ed. 398, 404, 72 S. Ct. 312, 315 (1952) ("a state may *** provide for trial of cases under

[FELA] by a nonunanimous verdict")).  

	D. Effect of Our Interpretation

		The Supreme Court has held "'federal law takes the

state courts as it finds them.' [Citations]."  Howlett v. Rose, 496 U.S. 356, 372, 110 L. Ed. 2d 332, 351, 110 S. Ct. 2430, 2441

(1990).  In Illinois, a plaintiff or defendant "desirous of a trial by jury" may "file a demand therefor."  735 ILCS 5/2-1105

(West 2000).  Here, defendants filed a jury demand, which was

stricken by the trial court on the erroneous belief the Jones Act

prohibits a defendant from requesting a trial by jury.  Because

we hold the defendants are entitled to a jury trial, we find the

trial court erred in striking defendants' jury demand.  

		In light of our decision involving the interpretation

of the Jones Act and the applicability of section 2-1105 of the

Code of Civil Procedure (735 ILCS 5/2-1105 (West 2000)), we need not address defendants' remaining argument that striking defen

dants' jury demand violated the equal protection clauses of the

United States and Illinois Constitutions.  

III. CONCLUSION 

		For the reasons stated, we answer the trial court's

April 29, 2002, question in the affirmative and remand the case

for further proceedings consistent with this opinion.

		Question answered and cause remanded.

		KNECHT, J., concurs.

		MYERSCOUGH, P.J., dissents.

		PRESIDING JUSTICE MYERSCOUGH, dissenting:

		I respectfully dissent.  The Jones Act gives only the

plaintiff the right to demand a jury trial.  The majority and

defendants cite no state or federal authority for the position

that a defendant in a Jones Act case has a statutory right to a

jury trial in state court.  The majority's decision is contrary

to the overwhelming weight of both federal and state court

decisions.  Allen v. Norman Brothers, Inc., 286 Ill. App. 3d 1091, 678 N.E.2d 317 (1997), appeal denied, 174 Ill. 2d 553, 686 N.E.2d 1157 (1997); Gibbs v. Lewis & Clark Marine, Inc., 298 Ill. App. 3d 743, 700 N.E.2d 227 (1998); Hanks v. Luhr Brothers, Inc., 303 Ill. App. 3d 661, 707 N.E.2d 1266 (1999), appeal denied, 184 Ill. 2d 556, 714 N.E.2d 527 (1999), cert. denied, 528 U.S. 966, 145 L. Ed.2d 314, 120 S. Ct. 402 (1999); Hearn v. American River Transportation. Co., 303 Ill. App. 3d 619, 707 N.E.2d 1283 (1999), appeal denied, 184 Ill. 2d 557, 714 N.E.2d 527 (1999); Craig v. Atlantic Richfield Co., 19 F.3d 472 (9th Circ. 1994), cert. denied 513 U.S. 875, 130 L. Ed. 2d 133, 115 S. Ct. 203 (1994); Linton v. Great Lakes Dredge & Dock Co., 964 F.2d 1480, 1490 (5th Circ. 1992), cert. denied 506 U.S. 975, 121 L. Ed. 2d 375, 113 S. Ct. 467 (1992); Rachal v. Ingram Corp., 795 F.2d 1210 (5th Cir. 1986).

		As indicated above, however, several federal courts

have found that only a plaintiff has a right to a jury trial. 

"[F]ederal court decisions interpreting a federal act are actu

ally binding upon Illinois courts." (Emphasis in original.)  Sundance Homes, Inc. v. County of Du Page, 195 Ill. 2d 257, 276, 746 N.E.2d 254, 266 (2001).  It is improper for this state

appellate court to interpret a federal statute contrary to

interpretations made by federal appellate courts.  Sundance Homes, Inc. v. County of DuPage, 195 Ill. 2d at 276257, 746 N.E.2d 254at 266 (2001).

		Moreover, the right to a jury trial in Jones Act cases

is substantive, not procedural.  Dice v. Akron, Canton & Youngs town R.R. Co., 342 U.S. 359, 363, 96 L. Ed. 2d 398, 404, 72 S. Ct. 312, 315 (1952); Allen v. Norman Brosthers, Inc., 286 Ill. App.  3d 1091, 678 N.E.2d 317 (1997), appeal denied, 174 Ill. 2d 553, 686 N.E.2d 1157 (1997); Gibbs v. Lewis & Clark Marine, Inc., 298 Ill. App. 3d 743, 750, 700 N.E.2d 227, 233 (1998).  Federal

substantive law governs this issue and holds that only the

plaintiff in a Jones Act case has the right to demand a trial by

jury.  Craig, 19 F.3d 472supra; Linton, supra964 F.2d 1480; Rachal, supra795 F.2d 1210.  It may be that the majority of this court disagrees

with the federal courts' interpretation of the Jones Act, but it

is not their place to substitute their interpretation for federal

courts' interpretation of a federal statute.  Sundance, 195 Ill. 2d 527, 76 46 N.E.2ed 254supra.

		Even if the Jones Act statute itself does not prohibit

a Jones Act defendant from requesting a jury trial, nothing in

the statute gives the defendant a "right" to a jury trial. 

Furthermore, nothing in Illinois state law guarantees a defendant

in all types of cases a jury trial, except in those cases where

the right existed at common law.  The majority opinion, while not

expressly stating so, appears to agree that Jones Act claims did

not exist at common law.  Therefore, Jones Act defendants are not guaranteed the right to a jury trial by the Illinois Constitu

tion.  Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33, 643 N.E.2d 734 (1994).  

		The majority look\s to the Jones Act to try to find a

"right" to a jury trial for the defendant.  Making theirits own

interpretation of a federal statute, directly contrary to what

federal courts have held, the majority finds a "right" to a jury

trial in the language of the Jones Act.  As discussed above, a

state appellate court "overruling" direct federal authority in

interpretation of a federal statute is improper.

		The majority next looks to state procedure (735 ILCS

5/2-1105 (West 2000)) for support of theirits position.  Section 

2-1105(a) says, "A defendant desirous of a trial by jury must

file a demand therefore not later than the filing of his or her

answer." 735 ILCS 5/2-1105 (West 2000).  This statute merely

provides the procedure by which a party may advise the court of

its desire for a jury trial.  Roszell v. Gniadek, 348 Ill. App. 341, 109 N.E.2d 222, 224 (1952).  It says nothing whatsoever

about whether a party is entitled to a jury trial in any given

action.

		Accordingly, I would d answer the certified question in

the negaitvtive.affirm the trial court.