Braband v. Beech Aircraft Corp.

• Citation: 367 N.E.2d 118,9 Ill.Dec. 684,51 Ill.App.3d 296
• Decision Date: 19 July 1977
• Docket Number: No. 62340,62340
• Parties: , 9 Ill.Dec. 684 Gale BRABAND and Elizabeth Forsythe, Plaintiffs-Appellees, v. BEECH AIRCRAFT CORPORATION, Defendant-Appellant, and Kollsman Company, Division of Sun Chemical Corporation and Eagle Aircraft Services, Ltd., Defendants.
• Court: United States Appellate Court of Illinois

Page 118

367 N.E.2d 118

51 Ill.App.3d 296, 9 Ill.Dec. 684

Gale BRABAND and Elizabeth Forsythe, Plaintiffs-Appellees, v. BEECH AIRCRAFT CORPORATION, Defendant-Appellant and Kollsman Company, Division of Sun Chemical Corporation and Eagle Aircraft Services, Ltd., Defendants.

No. 62340.

Appellate Court of Illinois, First District, Second Division.

July 19, 1977.

Lord, Bissell & Brook, Chicago, for defendant-appellant; Hugh C. Griffin, Chicago, of counsel.

Philip H. Corboy & Associates, Chicago, for plaintiffs-appellees; Susan E. Loggans, Chicago, of counsel.

JIGANTI, Justice:

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.

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 corporation 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 Railway Co. (7 Cir. 1968), 407 F.2d 639; Frummer v. Hilton Hotels International (1967), 19 N.Y.2d 533, 281 N.Y.S.2d 41, 227 N.E.2d 851, aff'd, 20 N.Y.2d 737, 283 N.Y.S.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, 24 L.Ed. 565, 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, 66 S.Ct. 154, 159, 90 L.Ed. 95 (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, * *." Nelson at 383-4, 143 N.E.2d at 676. (Emphasis added.)

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 page 316, 66 S.Ct. (154) at page 158.)" Nelson at 384, 143 N.E.2d at 677. (Emphasis added.)

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 principle place of business is relevant in this connection.' (326 U.S. at page 317, 66 S.Ct. (154) at page 158.)" Nelson at 385, 143 N.E.2d at 677.

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." Nelson, at p. 389, 143 N.E.2d at p. 679.

The court in Gray v. American Radiator (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 on two questions: first, whether he has certain minimum contacts with the State (see International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 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, 66 S.Ct. 154, 90 L.Ed. 95, 104-105; Nelson v. Miller, 11 Ill.2d 378, 390, 143 N.E.2d 673.) " Gray at 436-37, 176 N.E.2d at 763. (Emphasis added.)

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 def...