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HELLRIEGEL v. SEARS ROEBUCK & CO.

December 23, 1957

DANIEL W. HELLRIEGEL, A MINOR, BY HIS FATHER AND NEXT FRIEND, CECIL N. HELLRIEGEL, PLAINTIFF,
v.
SEARS ROEBUCK & CO., A CORPORATION, NEWARK STOVE COMPANY, A CORPORATION, AND POWER PRODUCTS CORPORATION, A CORPORATION, DEFENDANT.



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 Wisconsin.

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 Rule 4(d)(3).

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 constitutional requirement.

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 ...

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