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Braband v. Beech Aircraft Corp.





APPEAL from the Circuit Court of Cook County; the Hon. NICHOLAS J. BUA, Judge, presiding.


The trial court denied the motion of Beech Aircraft Corporation (Beech) to quash the service of process. Beech objected to the jurisdiction of the court. The trial court certified the question for an interlocutory appeal pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1975, ch. 110A, par. 308). This court in its discretion under the rule allowed an appeal from the order.

The parties filed an agreed statement of facts which they amended on two occasions. The essential facts are that the suit arises from the crash of a Beech designed and manufactured plane as it approached an airport located near Frobisher Bay in the Northwest Territories of Canada. Three people on board, all pilots, were killed. The plane was purchased by Coleman Aircraft Company of Morton Grove, Illinois, and it appears that it had been based in Illinois for a period of time before the crash. It took off from Illinois on its final trip and was being ferried from Chicago to England. The plaintiffs' decedents were Illinois residents and their dependents are presently Illinois residents. The plaintiffs are administrators of the estates of two of the decedent pilots, James L. Braband and Donald R. Forsythe. The suits by the separate plaintiffs were consolidated for trial. They were brought under the Wrongful Death Act (Ill. Rev. Stat. 1970, ch. 70, pars. 1, 2).

The complaints as they pertained to Beech charged that the airplane and altimeter were designed, manufactured, assembled and sold in the condition that was not reasonably safe in that the airplane was not aerodynamically sound and was likely to crash when flown in a reasonably foreseeable manner; that the altimeter was manufactured in such a manner that it did not reflect accurate altitude readings when the aircraft was being flown in a manner that was reasonably foreseeable; and that the altimeter was manufactured and sold without any warnings that it was likely not to reflect an accurate altitude reading when being flown in a manner which was reasonably foreseeable. Further, as a proximate result of one or more of the unsafe conditions alleged the plaintiffs' decedents were killed when the plane crashed.

• 1 The plaintiffs contend that the Illinois courts> have jurisdiction because Beech committed a "tortious act" in Illinois under Civil Practice Act section 17(1)(b), the "long arm statute" (Ill. Rev. Stat. 1975, ch. 110, par. 17(1)(b)). The plaintiffs also contend that Beech was present and doing business in Illinois and jurisdiction attaches under Civil Practice Act section 13.3. The plaintiffs concede that the court has not acquired jurisdiction under the "transaction of business" section of the long arm statute, section 17(1)(a). The distinction between the "present and doing business theory" and the "transaction of business" theory is that under the former a corporation that engages in a continuous and systematic course of business in the State becomes subject to that State's jurisdiction even though the subject lawsuit may have no relationship to the business that the corportion does within the State. Under the latter theory, if the corporation transacts any business within the State and a cause of action arises from that transaction then the State has jurisdiction. (See e.g., Lindley v. St. Louis-San Francisco Ry. Co. (7th Cir. 1968), 407 F.2d 639; Frummer v. Hilton Hotels International, Inc. (1967), 19 N.Y.2d 533, 281 N.Y. Supp.2d 41, 227 N.E.2d 851, aff'd (1967), 20 N.Y.2d 737, 283 N.Y. Supp.2d 99, 229 N.E.2d 696.) This portion of the opinion will only deal with the issue concerning a "tortious act," section 17(1)(b). The concurring opinion will consider whether Beech was engaged in a continuous and systematic course of business in Illinois. I believe Illinois has jurisdiction because a "tortious act" was committed in Illinois, but do not believe that Beech engaged in a continuous and systematic course of business.

The Illinois Supreme Court in the case of Nelson v. Miller (1957), 11 Ill.2d 378, 143 N.E.2d 673, had occasion to consider the constitutionality of the 1955 amendments to sections 16 and 17 of the Civil Practice Act. Section 16 concerns itself with the manner of personal service of process outside of the State under the long arm statute and is not pertinent to this opinion. The amendments to those sections authorized the entry of judgments in personam on personal service of summons outside of the State in enumerated classes of cases. The defendant in Nelson was a Wisconsin resident who sent one of his employees into Illinois to deliver an appliance. While in Illinois the employee allegedly negligently injured the plaintiff. The defendant in Nelson contended that he was denied due process of law in violation of the fourteenth amendment of the Constitution of the United States and section 2 of article II of the Constitution of Illinois. The Nelson court commented that:

"Since Pennoyer v. Neff, 95 U.S. 714, was decided in 1878, significant social, technological, and legal developments have occurred. Rigid concepts have yielded to fiction, and fiction has yielded to forthright and realistic considerations of fairness in the determination of what constitutes jurisdiction to determine personal rights. * * * The foundations of jurisdiction include the interest that a State has in providing redress in its own courts> against persons who inflict injuries upon, or otherwise incur obligations to, those within the ambit of the State's legitimate protective policy. The limits on the exercise of jurisdiction are not `mechanical or quantitative' (International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945),) but are to be found only in the requirement that the provisions made for this purpose must be fair and reasonable in the circumstances, * * *." (Emphasis added.) 11 Ill.2d 378, 383-84.

The Nelson court also quoted from International Shoe:

"`* * * [D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he has certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."' (326 U.S. at 316.)" (Emphasis added.) (11 Ill.2d 378, 384.)

Again Nelson quotes from International Shoe:

"[T]he demands of due process `may be met by such contacts of [the defendant] with the state of the forum as make it reasonable, in the context of our federal system of government, to require the [defendant] to defend the particular suit which is brought there. An "estimate of the inconveniences" which would result to the [defendant] from a trial away from its "home" or principal place of business is relevant in this connection.' (326 U.S. at 317.)" 11 Ill.2d 378, 384-85.

The Nelson court determined the intent of the legislature:

"Sections 16 and 17 of the Civil Practice Act reflect a conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due-process clause." (11 Ill.2d 378, 389.)

The court in Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill.2d 432, 436, 176 N.E.2d 761, reiterated the interpretation of the legislative intention.

The Gray case in 1961 again examined the question of jurisdiction under the long arm statute. One of the defendants, Titan Valve, was a foreign corporation that manufactured safety valves in Ohio. One of its valves was incorporated into a water heater that exploded in Illinois. Titan Valve did not do business in Illinois, had no agent in Illinois and sold the valve to the manufacturer of the water heater outside of the State of Illinois. The court there in finding that Illinois had jurisdiction commented on Nelson:

"The ratio decidendi [in Nelson] was that Illinois has an interest in providing relief for injuries caused by persons having `substantial contacts within the State.' A standard of fairness or reasonableness was announced, within the limitation that defendant be given a realistic opportunity to appear and be heard. * * *

Under modern doctrine the power of a State court to enter a binding judgment against one not served with process within the State depends upon two questions: first, whether he has certain minimum contacts with the State (see International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L.ed. 95, 102), and second, whether there has been a reasonable method of notification. (See International Shoe Co. v. Washington, 326 U.S. 310, 320, 90 L.ed. 95, 104-105; Nelson v. Miller, 11 Ill.2d 378, 390.)" (Emphasis added.) 22 Ill.2d 432, 436-37.

• 2 The word "tortious" must be examined in the case at bar bearing in mind the due process tests for jurisdiction as established by the case law: fair and reasonable in the circumstances; minimal contacts so that the suit does not offend traditional notions of fair play and substantial justice; contacts with the State that make it reasonable for a defendant to defend in a foreign State when estimating the inconveniences, and also the court's interpretation in Nelson and in Gray that the intent of the legislature was that section 17 of the Civil Practice Act reflected a conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by due process. In Nelson the court said that the word "tortious" can be used to describe conduct that subjects the actor to tort liability and for that purpose the Restatement so uses it. (Restatement of Torts § 6 (1934).) "It does not follow, however, that the word must have that meaning in a statute that is concerned with jurisdictional limits." (11 Ill.2d 378, 392.) In Poindexter v. Willis (1967), 87 Ill. App.2d 213, 217-18, 231 N.E.2d 1, the court in finding jurisdiction over the nonresident defendant said that the word "tortious" when used under section 17(1)(b), "* * * is not restricted to the technical definition of a tort, but includes any act committed in this state which involves a breach of duty to another and makes the one committing the act liable to respondent in damages." In United States Dental Institute v. American Association of Orthodontists (N.D. Ill. 1975), 396 F. Supp. 565, 571, the court in finding jurisdiction in an antitrust case made the same statement.

• 3 Considering the expansive definition of the word "tortious" as stated in the case law, I believe that a tortious act was committed by the delivery into Illinois of a plane that was allegedly unreasonably dangerous. A tort to be an actionable wrong, requires a duty, a breach of the duty and an injury. (Mieher v. Brown (1973), 54 Ill.2d 539, 541, 301 N.E.2d 307.) The chain culminating in the death of the plaintiffs' decedents began in Kansas with the breach of the duty when the allegedly defective plane was manufactured. That condition persisted until it became a cause of action with the crash in Canada causing the deaths. Between the manufacture and the crash the allegedly defective plane was purchased by an Illinois corporation and was based in Illinois for a period of time. A duty was owed to the residents of Illinois. The injury in the instant case is to the plaintiffs who reside in Illinois. Whether injury or death Illinois has the right to provide redress against those who inflict injuries upon "those within the ambit of the State's legitimate protective policy". (11 Ill.2d 378, 384.) The concept that a party commits himself to this court's jurisdiction by a single act is not unusual. The court has sustained jurisdiction under 17(1)(a) in Ward v. Formex Inc. (1975), 27 Ill. App.3d 22, 325 N.E.2d 812; First Professional Leasing Co. v. Rappold (1974), 23 Ill. App.3d 420, 319 N.E.2d 324; Colony Press, Inc. v. Fleeman (1974), 17 Ill. App.3d 14, 308 N.E.2d 78, and Cook Associates, Inc. v. Colonial Broach & Machine Co. (1973), 14 Ill. App.3d 965, 304 N.E.2d 27. The word "tortious" considering the history of the word in its context in the Civil Practice Act should include the delivery of the allegedly defective plane.

• 4 The determination that "tortious" includes the delivery of the plane does not conclude the issue of jurisdiction. Thus far, due process requirements have been used to analyze the word "tortious." Now the facts alleged in the complaint must be considered to determine if the allegations measure up to the constitutional demands of due process. Due process requires minimum contacts. Not all tortious acts necessarily satisfy minimum contacts. In McBreen v. Beech (7th Cir. 1976), 543 F.2d 26, the court found that the tort of libel was committed by the defendant in Illinois but the defendant did not have the minimum contacts with Illinois and consequently there was no jurisdiction. I believe that in the case at bar there were minimum contacts to satisfy due process. The relationship between the parties that concerns us here is the allegedly defective plane and the damages to the plaintiffs. The situs of the crash which caused the death is wholly fortuitous and is an insignificant factor in the relationship of these parties to the lawsuit. The significant factors are the manufacturing of the allegedly defective plane and the contact that the plaintiffs and their decedents had with the plane. The manufacturing took place in Kansas. The most significant relationship between the decedents and the plane was centered here in Illinois where the plane was based and where the decedents boarded the plane and started their trip to England. The pecuniary loss resulting from the loss of income and moral training and superintendence of education occurred here in Illinois. See Illinois Pattern Jury Instructions, Civil, No. 31.04 (2d ed. 1971).

It is not offensive to "traditional notions of fair play and substantial justice" to say to the manufacturer of a transient product such as an airplane that it must defend the lawsuit in a reasonably foreseeable place. Indeed, in Gray, at page 442, the court noted that it was not unjust to hold a corporation answerable to a suit in another State where it elects to sell its product for ultimate use in that State. In the case at bar the ultimate use of the product was in Illinois as well as in a number of other places. In considering the reasonableness of requiring the corporation to defend the suit away from its principle place of business it is proper for the court to "estimate the inconveniences." The inconveniences in trying this case in the Northwest Territories of Canada where all the parties are residents of midwestern states is rather obvious. As between the residence of the defendant in Kansas and the plaintiff in Illinois the case is comparable to Gray where the court found jurisdiction in Illinois.

The Restatement (Second) of Conflicts of Laws § 37 (1971) provides:

"A State has power to exercise judicial jurisdiction over an individual who causes effects in the State by an act done elsewhere with respect to any cause of action arising from these effects unless the nature of the effects and of the individual's relationship to the State make the exercise of such jurisdiction unreasonable."

The rationale given is that a State has a natural interest in the effects of an act within its territory and may exercise jurisdiction provided that the nature of the effects and the defendant's relationship were such to make the exercise fair and reasonable. An example is given of a defendant who explodes dynamite close to the border of the plaintiff's State where the plaintiff is injured. The example suggests that even without any other relationship the defendant would be subject to jurisdiction in the plaintiff's State. Similarly, in the case at bar, the plaintiffs are Illinois residents and they have suffered injuries as a result of an occurrence that took place outside of the State of Illinois. The rationale given in the example in the Restatement is that the effects could have been anticipated and were highly dangerous to persons. The effects that could be caused by a defective plane are equally to be anticipated. In addition, there were substantial contacts between Beech and the plaintiffs prior to the crash as previously mentioned which makes the exercise of jurisdiction by the State of Illinois fair and reasonable in the circumstances. Nelson, at 384. Also see to the same effect Nev. Rev. Stat. tit. 2, ch. 14, § 14.080 (1973).

For these reasons I would affirm the order of the trial court.


Mr. JUSTICE STAMOS, specially concurring:

I would also affirm the order of the trial court denying the motion of defendant, Beech Aircraft Corp. (hereinafter "Beech"), to quash service of process and to dismiss the complaint for lack of jurisdiction. However, in my estimation, defendant is amenable to service of process in Illinois by virtue of its contractual relationship with its distributor, Hartzog Aviation Co. (hereinafter "Hartzog").

Section 13.3 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 13.3) provides for service ...

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