APPEAL from the Circuit Court of Tazewell County; the Hon.
ROBERT E. HUNT, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
The plaintiffs, being three owners of Ford automobiles, filed a complaint at law purportedly on behalf of all owners of Ford and Mercury automobiles of the model years 1965 through 1969 and owners of 1968 and 1969 Thunderbird automobiles. According to the allegations of the plaintiffs these owners would constitute a class of approximately 4,000,000 individuals located throughout the United States. There was no allegation of physical injury to any of the plaintiffs, but it was alleged that the front wheel suspension systems of all the automobiles in question are defective in that such systems contain a mechanism known as a "lower control arm" which experiences progressive fatigue when subjected to high speed or severe impacts and which could eventually cause front wheel collapse. The plaintiffs demanded a trial by jury and $480,000,000 in compensatory damages and $960,000,000 in punitive damages. The plaintiffs further sought the issuance of a mandatory injunction which would require the defendant to recall and replace each of the allegedly defective lower control arms. This initial complaint filed by the plaintiffs contained four counts alleging strict liability in tort, negligence, warranty and deceit.
The defendant moved the trial court to dismiss the entire complaint on the ground that the suit was not a proper class action under the law of our State. The defendant moved specifically to strike Counts I and II of the complaint which alleged strict liability in tort and negligence on the ground that plaintiffs had not alleged that they had suffered the requisite injury to person or property which is necessary to sustain a cause of action under these theories. The motion of the defendant also moved that the prayers for injunctive relief be stricken since the plaintiffs have an adequate remedy at law in that damages could be awarded to compensate the plaintiffs for any injury which they may have suffered. The trial court granted the defendant's motion and the complaint was dismissed.
The plaintiffs next sought an order vacating the order of dismissal and asked for leave to file an amended complaint. The proposed amended complaint altered to some extent the legal theories upon which the plaintiffs desired to proceed. They abandoned their theories of strict liability, negligence and warranty and placed greater emphasis on their prayers for equitable relief and damages. Their prayer of relief demanded inter alia that the defendant advise the public of the existence of the allegedly defective vehicles and that it replace at its expense the control arms, and that further a "common fund" of $500,000,000 be set aside as the amount initially charged by Ford for the designing and manufacturing of the control arms in question. This common fund was to serve the purposes of assuring that the defendant would comply with any orders of the court and in the alternative was to be made available to the plaintiffs in the form of monetary damages for losses which they had allegedly suffered.
The trial court denied the plaintiffs' motion to vacate the order of dismissal and the request for leave to file the amended complaint. This appeal is taken from these orders and the issues presented for review are (1) whether the trial judge properly determined that the instant case was inappropriately brought as a class action under Illinois law, and (2) whether the trial judge was correct in his denial of the plaintiffs' motion to file an amended complaint.
• 1 It is apparent that the plaintiffs are attempting to maintain a class action on the basis that a great number of individuals purchased Ford, Mercury and Thunderbird automobiles between the years of 1965 and 1969 and that further all of these purchasers have a common or similar difficulty with a mechanical component of these vehicles which would entitle the owners to some legal satisfaction from the defendant. The mere fact that there are numerous aggrieved parties all of whom have similar claims against a defendant is not alone sufficient to support a class action in our state. See Fetherston v. National Republic Bancorp., 280 Ill. App. 151; Michelsen v. Penney, 10 F. Supp. 537.
• 2, 3 Representation by a few on behalf of many as a device to conclude the rights of the absent parties must be regarded by the courts as conduct requiring close and vigilant scrutiny, and as a technique which should be resorted to only when complete justice to all interested parties will follow from its application. Each situation must be carefully analyzed and considered from the viewpoint of the entire class, and general definitions as to the right of the named party to bring the action must give way to particular circumstances. Where the right to proceed is doubtful, permission will be generally refused. See Fox, Representative Actions and Proceedings, 1954 U. Ill. L. Forum, page 97.
• 4 It is to be noted that the matter of "class or representative actions" in Illinois is governed entirely by case law so we must examine and analyze the situation presented in the instant case in the light of the authoritative decisions rendered by the reviewing courts of our State.
In Newberry Library v. Board of Education, 387 Ill. 85, 55 N.E.2d 147, our Supreme Court stated:
"* * * This class suit is recognized as an invention of equity to enable it to proceed to a decree in suits where the number of those interested in the subject matter of the litigation is so great that it is impracticable to join them as parties.
To constitute a class suit in which the court acquires jurisdiction over every member of the class, and the decree therein binds members of that class not present, the subject matter of the litigation must be a common or joint interest, not only in the question involved, but likewise interest in common in the remedy and subject matter of the suit itself (Scott v. Donald, 165 U.S. 107, 17 S.Ct. 262, 41 L.Ed. 648), or the relationship between the parties present and those who are absent must be such as legally to entitle the former to stand in judgment for the latter. Scott v. Donald, 167 U.S. 107, 17 S.Ct. 262, 41 L.Ed. 648; Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22, 132 A.L.R. 741; Christopher v. Brusselback; 302 U.S. 500, 58 S.Ct. 350, 82 L.Ed. 388; Smith v. Swormstedt, 16 How. 288, 14 L.Ed. 942."
In the Newberry case the plaintiff, a holder of certain school bonds, brought suit to collect on an overdue interest coupon. The defendant school board argued that a class action had previously been filed by another bondholder and this prior class action precluded the plaintiff's separate suit. Our Supreme Court held that the earlier pending action was not a proper class action and therefore the plaintiff's suit was not barred. In so holding the court emphasized that the various bonds had been purchased through entirely separate and distinct albeit similar transactions. However, the fact that there had been purchases of identical but separate items from the defendant was held not ...