The opinion of the court was delivered by: Campbell, District Judge.
Plaintiff Daniel W. Hellriegel, a minor, has filed this action
in the Circuit Court of Cook County, Illinois, against defendants
Sears Roebuck & Co., a New York corporation, Newark Stove
Company, an Ohio corporation and Power Products Corporation of
Defendants have removed the action to this Court on the ground
that diversity of citizenship exists.
Plaintiff alleges that he has suffered personal injury as a
direct result of defendants' negligence in the manufacture and
sale of a "Craftsman" power lawn mower; that defendants Newark
Stove Company and Power Products Corporation, through careless
design, manufacture and assembly, caused the lawn mower in
question to be inherently dangerous; and that all three
defendants permitted such dangerous article to reach plaintiff
without warning him of its character.
Defendants Newark Stove Company and Power Products Corporation
have filed motions to quash service of summons.
The affidavits filed by Newark Stove and Power Products in
support of their motion may be summarized as follows:
Newark Stove Company does not own or operate any manufacturing
plant, office, sales force or other facility within the State of
Illinois. All sales of power mowers by Newark to Sears Roebuck &
Co. are made f.o.b. Newark, Ohio. Newark relinquishes all title
and control of such mowers upon delivery to Sears Roebuck & Co.
in Newark, Ohio. Newark does not service or assemble the mowers
after they are sold to Sears Roebuck & Co. Payment for the mowers
is made by Sears Roebuck & Co. at Newark, Ohio. Representatives
of Newark come to Illinois two or three times a year to discuss
purchase of lawn mowers with Sears Roebuck & Co. at its home
office in Chicago, Illinois, and oral contracts for the purchase
and sale of the mowers are entered into during those visits.
Power Products Corporation has no contacts with the State of
Illinois except through the lawn mowers manufactured or assembled
by Newark. Power Products manufactures and supplies Newark with
power units for the mowers. The last contact it has with its
units is in Wisconsin when they are picked up by a delivery firm
for delivery to Newark.
Newark Stove Company and Power Products Corporation were served
with summons, issuing out of the Circuit Court of Cook County,
Illinois, at their respective places of business in the States of
Ohio and Wisconsin, pursuant to Sections 16 and 17 of the
Illinois Civil Practice Act (Ill.Rev.Stat., 1957, Ch. 110, paras.
16 and 17).
It may be noted at the outset that, since process in this case
issued out of the State Court, there is here no problem in the
interpretation of Rules 4(d)(3) and 4(f) of the Federal Rules of
Civil Procedure, 28 U.S.C.A. (see Giffin v. Ensign, 3 Cir.,
234 F.2d 307; Holbrook v. Cafiero, D.C., 18 F.R.D. 218, 225.) It is
not disputed that the service of summons complied, as to the mode
of its making, with the provisions of Sections 16 and 17, and I
have no doubt that had it issued out of this Court it would have
been effective in this respect under Rule 4(f), notwithstanding
Defendants Newark Stove and Power Products do not dispute that
the question of personal jurisdiction in a diversity action must
be tested by state law (see Haas v. Fancher Furniture Company,
D.C., 156 F. Supp. 564). Indeed, where a case has been commenced
in a State Court and has subsequently, after service of process,
been removed to the Federal Court, it is difficult to see how the
answer could be otherwise.
However, Newark Stove and Power Products contend that Sections
16 and 17 of the Illinois Civil Practice Act do not give this
Court jurisdiction over their corporate "persons" because
plaintiff's cause of action arose prior to the effective date of
Sections 16 and 17; because Sections 16 and 17 cannot be read to
authorize out of state service upon them in this case; and
because, if interpreted to authorize such service, the provisions
would be unconstitutional as applied.
On the first point, I must accept the statutory interpretation
given to Sections 16 and 17 by the Supreme Court of Illinois in
Nelson v. Miller, 11 Ill.2d 378,
143 N.E.2d 673, making their authorization for out of state
service applicable to all actions pending on, or commenced after,
their effective date without regard to the date when the cause of
action arose. And I accept also the Court's view that such
interpretation of Sections 16 and 17 does not do violence to any
Section 16 authorizes service outside the State upon any person
"who has submitted to the jurisdiction of the courts of
[Illinois]," and prescribes the manner of such service. Section
17, so far as material here, provides:
"(1) Any person, whether or not a citizen or
resident of this State, who in person or through an
agent does any of the acts hereinafter enumerated,
thereby submits said person, and, if an individual,
his personal representative, to the jurisdiction of
the courts of this State ...