Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Nicholas J. Bua, Judge, presiding.
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 1, 1978.
Pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1971, ch. 70, par. 1 et seq.) plaintiffs, Gale Braband and Elizabeth Forsythe, administrators of their respective deceased husbands' estates, brought these consolidated actions in the circuit court of Cook County against defendant Beech Aircraft Corporation, hereafter defendant, and other defendants not involved in this appeal. The circuit court denied defendant's motion to quash the service of summons and included in its order the findings requisite to an application for leave to appeal. (Supreme Court Rule 308, 58 Ill.2d R. 308.) The appellate court allowed defendant's application for leave to appeal, affirmed the order of the circuit court (51 Ill. App.3d 296), and granted a certificate of importance permitting an appeal to this court. Supreme Court Rule 316, 58 Ill.2d R. 316.
The agreed statement of facts filed in the circuit court shows that an airplane, designed and manufactured by defendant, crashed as it approached an airport near Frobisher Bay, Northwest Territories, Canada, and that the three pilots on board were killed. Plaintiffs are the administrators of the estates of James L. Braband and Donald Forsythe, two of the pilots. The airplane was manufactured by defendant in Wichita, Kansas, and in 1966 was sold by defendant to Tex-Sun Beechcraft, Inc., located in San Antonio, Texas. In 1968 Tex-Sun sold it to Mission Broadcasting Company, located in Reno, Nevada. In 1971, Mission Broadcasting sold the aircraft to Coleman Aircraft Corporation of Morton Grove, Illinois. After being based in Illinois for a period of time, the aircraft was apparently sold by Coleman to Eagle Aircraft Services, Ltd., of London, England, and at the time of the crash was being flown from Morton Grove to London. The decedents were, and their surviving dependents have at all times been, residents of Illinois. When the airplane crashed it was owned by either Coleman or Eagle and was being piloted by Eagle's employee, James Going.
In affirming the circuit court's order, the appellate court majority filed two separate opinions. The lead opinion based the affirmance on the ground that defendant was amenable to service under section 17 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 17) for the reason that it had, within the contemplation of that section, committed a "tortious act" within this jurisdiction. The rationale of the special concurrence was that by reason of its contractual relationship with Hartzog Aviation Co., a distributor of defendant's products, defendant was present and doing business in Illinois and was therefore amenable to service of process under the provisions of sections 16 and 13.3 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, pars. 16, 13.3).
The statutes in pertinent part provide:
"Sec. 13.3. Service on private corporations. A private corporation may be served (1) by leaving a copy of the process with its registered agent or any officer or agent of said corporation found anywhere in the State; or (2) in any other manner now or hereafter permitted by law. A private corporation may also be notified by publication and mail in like manner and with like effect as individuals." Ill. Rev. Stat. 1971, ch. 110, par. 13.3.
"Sec. 16. Personal service outside State.
(1) Personal service of summons may be made upon any party outside the State. If upon a citizen or resident of this State or upon a person who has submitted to the jurisdiction of the courts> of this State, it shall have the force and effect of personal service of summons within this State; otherwise it shall have the force and effect of service by publication." Ill. Rev. Stat. 1971, ch. 110, par. 16(1).
"Sec. 17. Act submitting to jurisdiction Process.
(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 such person, and, if an individual, his personal representative, to the jurisdiction of the courts> of this State as to any cause of action arising from the doing of any of such acts:
(a) The transaction of any business within this State;
(b) The commission of a tortious act within this State;
(2) Service of process upon any person who is subject to the jurisdiction of the courts> of this State, as provided in this Section, may be made by personally serving the summons upon the defendant outside this State, as provided in this Act, with the same force and effect as though summons had been personally served within this State.
(3) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction ...