Braband v. Beech Aircraft Corp.

• Decision Date: 06 October 1978
• Docket Number: No. 49954,49954
• Citation: 72 Ill.2d 548,21 Ill.Dec. 888,382 N.E.2d 252
• Parties: , 21 Ill.Dec. 888 Gale BRABAND et al., Appellees, v. BEECH AIRCRAFT CORPORATION et al. Appeal of BEECH AIRCRAFT CORPORATION.
• Court: Illinois Supreme Court

Page 252

382 N.E.2d 252

72 Ill.2d 548, 21 Ill.Dec. 888

Gale BRABAND et al., Appellees, v. BEECH AIRCRAFT CORPORATION et al. Appeal of BEECH AIRCRAFT CORPORATION.

No. 49954.

Supreme Court of Illinois.

Oct. 6, 1978.

Rehearing Denied Dec. 1, 1978.

Lord, Bissell & Brook, Chicago (Gary W. Westerberg, Hugh C. Griffin, and Richard E. Mueller, Chicago, of counsel), for appellant.

Philip H. Corboy & Associates, Chicago (Philip H. Corboy, Chicago, of counsel), for appellees.

GOLDENHERSH, Justice:

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, 9 Ill.Dec. 684, 367 N.E.2d 118), 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 over him is based upon this Section.

(4) Nothing herein contained limits or affects the right to serve any process in any other manner now or hereafter provided by law. " Ill.Rev.Stat.1971, ch. 110, par. 17.

In count I of plaintiffs' amended complaint directed against defendant as the manufacturer of the airplane, and another defendant as the manufacturer of the altimeter, a component part of the airplane, it was alleged:

"At the time and place aforesaid, the airplane and the altimeter were designed, manufactured, assembled and sold in a condition that was not reasonably safe in one or more of the following respects:

a. That the airplane was not aerodynamically sound and was likely to crash when used and/or flown in a reasonably foreseeable manner.

b. That the altimeter was manufactured in such a manner that it did not reflect accurate altitude readings for the airplane when said airplane was airborne and when the aircraft was being flown in a manner which was reasonably foreseeable.

c. That the altimeter was manufactured and sold without any warnings that it was likely not to reflect accurate altitude readings for the aircraft when said aircraft was airborne and when the aircraft was being flown in a manner which was reasonably foreseeable."

Defendant concedes that if it was amenable to service of process in Illinois, such service was properly made. It contends, however, that the appellate and circuit courts erred for the reasons that this cause did not arise out of the commission of a tortious act within the State of Illinois and that the activities of Hartzog Aviation, Inc., a separate independent Illinois corporation, did not, in this case, serve to subject defendant to the jurisdiction of the courts of Illinois. It is plaintiffs' position that defendant committed a tortious act in Illinois within the contemplation of section 17 of the Civil Practice Act and that defendant was "present and doing business in Illinois" and therefore amenable to service of process.

The question whether a State may appropriately assert jurisdiction over a foreign corporation has been the subject of frequent litigation. Recently, in Shaffer v. Heitner (1977), 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683, the Supreme Court reviewed the pertinent authorities commencing with Pennoyer v. Neff (1878), 95 U.S. 714, 24 L.Ed. 565, and concluded that the standards elucidated in International Shoe Co. v. Washington (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, continued to be the test of a State's jurisdiction over a foreign corporation. The standards prescribed in International Shoe Co. are that "due 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 have 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. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102.) In Shaffer, after quoting the foregoing language from International Shoe Co., the court said:

"(T)he inquiry into the State's jurisdiction over a foreign corporation appropriately focused not on whether the corporation was 'present' but on whether there have been

'such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there.' (326 U.S. 310, 317, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102.)

Mechanical or quantitative evaluations of the defendant's activities in the forum could not resolve the question of reasonableness:

'Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment In personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.' (326 U.S. 310, 319, 66 S.Ct. 154, 160, 90 L.Ed. 95, 104.)" 433 U.S. 186, 203-04, 97 S.Ct. 2569, 2580, 53 L.Ed.2d 683, 697.

Assuming that "due process is satisfied" the assertion of jurisdiction over a foreign corporation has traditionally required the finding that it was "present and doing business" within this jurisdiction. (See discussion, Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill.2d 321, 327, 10 Ill.Dec. 602, 368 N.E.2d 88.) The difficulties encountered in the application of this concept to given factual situations were noted in Shaffer v. Heitner (1977), 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683, wherein the Supreme Court said:

"The motorists' consent theory was easy to administer since it...