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Doolin v. K-s Telegage Co.

OPINION FILED JULY 16, 1979.

JOHN J. DOOLIN, PLAINTIFF-APPELLANT,

v.

K-S TELEGAGE COMPANY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.

MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

The plaintiff, John Doolin, appeals from an order of the circuit court of Cook County granting the motion of the defendants, K-S Telegage Company and David B. Lilly Company, to quash service of summons and to dismiss the plaintiff's amended complaint. The plaintiff contends that the defendants are subject to the in personam jurisdiction of the Illinois courts> because of their commission of a tortious act in Illinois (Ill. Rev. Stat. 1975, ch. 110, par. 17(1)(b)) and also maintains that sufficient minimum contacts existed as required by the due process clause to constitutionally justify jurisdiction.

The plaintiff filed an action against the K-S Telegage Company, a Delaware corporation, and the David B. Lilly Company, individually and as successor to Telegage, to recover for injuries suffered when a hand truck that he was operating collapsed. (Hereinafter both entities will be jointly referred to as Telegage.) Plaintiff's amended complaint alleged that Telegage maintained one or more offices in Illinois to carry on its business of "designing, manufacturing, and selling hand cars for sale and distribution throughout the United States * * *." It further alleged that, in the course of this business, Telegage did "design, manufacture, and sell to Bresler's Ice Cream Company, an Illinois corporation, a K-S-1, narrow aisle two wheel delivery hand truck." The complaint asserted liability on the basis that Telegage manufactured and sold the hand truck to Bresler's in an unreasonably dangerous condition in that the truck was not equipped with safety equipment to insure its stability. It was also alleged that the unreasonably dangerous condition of the truck proximately caused the injuries that Doolin sustained in Illinois while using the truck in the course of his employment with Bresler's.

Service of process was made upon defendants in Wilmington, Delaware. Telegage filed a special and limited appearance and moved to quash service of summons and to dismiss the plaintiff's amended complaint on the ground that there were insufficient contacts with the State of Illinois to subject Telegage to the in personam jurisdiction of the Illinois courts>. Telegage filed an affidavit in support of its motion to quash. The affidavit, sworn to by Charles Ashton III, a vice president of K-S Telegage, division of David B. Lilly Company, stated in pertinent part:

"4. That the K-S Telegage Co., which is a division of the David B. Lilly Company, Inc., maintains no offices, facilities, plants, or any other structure in the State of Illinois.

5. That the K-S Telegage Company, a division of David B. Lilly Company, Inc., maintains no agents, salesmen, personnel or any representatives within the State of Illinois.

6. That the K-S Telegage Company, a division of David B. Lilly Company, Inc., does not have any salesmen or agents or any other representatives or personnel who periodically come into the State of Illinois for transaction of business, nor does it maintain any such personnel to solicit business within the State of Illinois, nor has it ever so acted within the State of Illinois.

7. That the K-S Telegage Company, a division of David B. Lilly Company, Inc., does not execute any contracts or purchase orders within the State of Illinois.

8. That the K-S Telegage Company, a division of the David B. Lilly Company, Inc. does not negotiate any contracts within the State of Illinois.

9. That the K-S Telegage Company, a division of the David B. Lilly Company, Inc., does not have any distributorships within the State of Illinois.

10. That the K-S Telegage Company, a division of David B. Lilly Company, Inc., does not now, nor has it ever, engaged in the design or manufacture of any hand cars for sale and distribution, whether in the State of Illinois or anywhere in the United States.

11. That the K-S Telegage Company, a division of David B. Lilly Company, Inc., has never entered into or executed any contracts with Bresler's Ice Cream Company in the State of Illinois."

In response, the plaintiff filed a memorandum of law and two exhibits. The plaintiff did not, however, file a counteraffidavit. Exhibit A attached to the plaintiff's memorandum, appears to be a copy of a letter written by C.M. Ashton, to an Illinois corporation, Lincoln-Reilly, Inc., Elmhurst, Illinois, in response to an apparent request by Lincoln-Reilly for information and prices on Telegage's hand trucks. In the letter Ashton acknowledged he had included two brochures on "our KS Aluminum Delivery Trucks." The two brochures, the letter noted, included a complete description of Telegage's trucks. Exhibit B appears to be a two-page brochure illustrating and describing several models of K-S Telegage dollies or hand carts. The brochure directs orders to the K-S Telegage Company, P.O. Box 2285, Wilmington, De. 19899. Printed as part of the descriptive copy is the statement that "Many of the largest dairies in the country are using K-S Dollies exclusively." Plaintiff, in his memorandum accompanying the exhibits, asserted that the defendants did not deny that it sold its products to Bresler's, that its product was sold in contemplation of ultimate use in Illinois, or that the accident occurred in Illinois. There was no hearing on the disputed jurisdictional facts nor was any additional evidence taken by the trial court.

On August 31, 1977, the trial court entered an order and pursuant to Telegage's motion, quashed summons and dismissed the plaintiff's amended complaint. On October 4, 1977, upon plaintiff's motion, the trial court amended its August 31, 1977, order nunc pro tunc to state its finding that: (1) the defendants did not transact business within the State pursuant to section 17(1)(a) (Ill. Rev. Stat. 1975, ch. 110, par. 17(1)(a)); and that (2) the defendants had insufficient contacts to justify jurisdiction under ...


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