Connelly v. Uniroyal, Inc.

• Court: Appellate Court of Illinois
• Writing for the Court: SIMON
• Citation: Connelly v. Uniroyal, Inc., 55 Ill.App.3d 530, 370 N.E.2d 1189, 13 Ill.Dec. 162 (Ill. App. 1977)
• Decision Date: 07 December 1977
• Docket Number: No. 76-257,76-257
• Parties: , 13 Ill.Dec. 162 John Darrill CONNELLY, Plaintiff-Appellee, v. UNIROYAL, INC., a corporation and Uniroyal Englebert Belgique, S.A., a Belgian Corporation, Defendants-Appellants.

Page 1189

370 N.E.2d 1189

55 Ill.App.3d 530, 13 Ill.Dec. 162

John Darrill CONNELLY, Plaintiff-Appellee, v. UNIROYAL, INC., a corporation and Uniroyal Englebert Belgique, S.A., a Belgian Corporation Defendants-Appellants.

No. 76-257.

Appellate Court of Illinois, First District, Third Division.

Dec. 7, 1977.

Chadwell, Kayser, Ruggles, McGee & Hastings, Chicago (David J. Gibbons, Chicago, of counsel), for appellants.

John E. Norton & Associates, Belleville, James R. Sullivan, Peter A. Fasseas, Chicago (Edward J. Kionka, Columbia, of counsel), for appellee.

SIMON, Presiding Justice:

This is an interlocutory appeal with the permission of this court pursuant to Illinois Supreme Court Rule 308 (Ill.Rev.Stat.1975, ch. 110A, par. 308) in which each defendant has raised an independent question.

We consider first the issue raised by defendant Uniroyal Englebert Belgique, S.A. (Englebert), a Belgian corporation, neither registered nor found in Illinois. Englebert was served in Belgium with summons issued by the circuit court of Cook County, and moved to quash that service, claiming it had done nothing to submit itself to the jurisdiction of our courts. The circuit court denied the motion to quash, and Englebert's appeal requires us to grapple with the concept of the "commission of a tortious act within" Illinois, which brings a nonresident into our courts under the authority of the state long-arm statute. (Ill.Rev.Stat.1973, ch. 110, par. 17(1)(b).) In view of the conclusion we reach, it is unnecessary to consider whether Englebert is subject to the jurisdiction of Illinois courts because it is doing business in Illinois (See St. Louis-San Francisco Railway Co. v. Gitchoff (1977), 68 Ill.2d 38, 11 Ill.Dec. 598, 369 N.E.2d 52) or because there was any transaction of business in Illinois by Englebert. See Ill.Rev.Stat.1973, ch. 110, par. 17(1)(a).

Englebert manufactures and sells tires, including tires sold to General Motors in Belgium. The latter corporation manufactures or assembles its Opel automobiles in a General Motors plant in Belgium, and ships them to the United States.

Plaintiff's father purchased an Opel with Englebert tires from an Illinois Buick dealer on September 13, 1969. The automobile was garaged, maintained and principally used in Illinois. Plaintiff was injured when a tire on the Opel failed while the auto was being operated in Colorado.

Plaintiff as well as his father are residents of Illinois. Plaintiff has verified an affidavit stating that the majority of the witnesses who will be called in the action, except for those employed by defendants, are located in Illinois or could more conveniently be brought here than to Colorado or elsewhere. This is not contested by Englebert. Englebert contends Illinois has no jurisdiction because the cause of action did not arise from a commission of a tortious act by Englebert in Illinois.

Englebert's appeal raises two separate inquiries: First, can the language, "the commission of a tortious act within this State," as used in the long-arm statute be construed to include the acts of Englebert; and second, does the record show Englebert had sufficient minimum contacts with Illinois to subject it to jurisdiction in Illinois without violating due process standards.

We direct attention first to the interpretation of the language employed in the Illinois long-arm statute. Gray v. American Radiator and Sanitary Corp. (1961), 22 Ill.2d 432, 176 N.E.2d 761, a leading and often cited case in the application of a state long-arm statute relating to a tortious act, construed the Illinois statute to include injuries suffered in this state by Illinois residents as a result of defective products manufactured outside this state. Gray relied on the theory that, for purposes of jurisdiction, the place of injury is the place of a tortious act. Nothing in Gray, however, precludes Illinois courts from using the state long-arm statute to acquire jurisdiction based on the commission of a tortious act where the injury in a product-liability case was not suffered in Illinois. The Gray opinion does not foreclose this court from concluding that a "tortious act" was committed in Illinois within the meaning of section 17(1)(b) of the long-arm statute, even though the injury occurred outside Illinois.

Gray did not hold that a "tortious act," as those words are used in the statute, cannot occur before the injury is suffered and a cause of action exists. In fact, Gray recommended a flexible application of the long-arm statute. In referring to the legislative intent in employing the term "tortious act," the court there said:

"We think the intent should be determined less from technicalities of definition than from considerations of general purpose and effect. To adopt the criteria urged by defendant would tend to promote litigation over extraneous issues concerning the elements of a tort and the territorial incidence of each, whereas the test should be concerned more with those substantial elements of convenience and justice presumably contemplated by the legislature. As we observe in Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673, the statute contemplates the exertion of jurisdiction over nonresident defendants to the extent permitted by the due-process clause." Gray, at 436, 176 N.E.2d at 763.

And, in the earlier case of Nelson v. Miller (1957), 11 Ill.2d 378, 143 N.E.2d 673, the court considered the word "tortious" as used in the long-arm statute:

"The word 'tortious' can, of course, be used to describe conduct that subjects the actor to tort liability. For its own purposes the Restatement so uses it. (Restatement, Torts, § 6.) It does not follow, however, that the word must have that meaning in a statute that is concerned with jurisdictional limits. To so hold would be to make the jurisdiction of the court depend upon the outcome of a trial on the merits. There is no indication that the General Assembly intended a result so unusual. The essential question in cases of this type is where the action is to be tried. Once it has been determined that the relationship of the defendant to the State is sufficient to warrant trial here, we are of the opinion that the court has jurisdiction to determine the merits of the controversy, and that its jurisdiction will not be destroyed by its exercise." Nelson, at 392, 143 N.E.2d at 680.

We interpret Nelson to mean that the words of the statute are subject to a variety of interpretations a not unusual feature of the judicial process. (See Application of County Collector (1976), 44 Ill.App.3d 327, 331-332, 2 Ill.Dec. 859, 357 N.E.2d 1302.) The court also observed in Nelson :

"The substantial objective of the new jurisdictional provisions is to enable the plaintiff to obtain a trial of the issues of liability and of damages in this State, when the circumstances make it the appropriate and convenient forum for that purpose." Nelson, 11 Ill.2d at 393, 143 N.E.2d at 681.

This analysis favoring a flexible approach is supported by Braband v. Beech Aircraft Corp. (1977), 51 Ill.App.3d 296, 9 Ill.Dec. 684, 367 N.E.2d 118, which is similar to the case before us inasmuch as the place of injury there was also outside Illinois. Braband involved a 5-year-old plane which Beech designed and manufactured; the plane was previously sold to firms located in Texas and Nevada, and later sold to a business in Illinois, where the plane was based. The aircraft took off from Illinois for a trip to England for delivery to its purchaser, but crashed while approaching an airport in the northwest territories of Canada. The plaintiffs, executors of the estates of the deceased pilots, sued Beech in Illinois, charging both that vital parts of the plane were not reasonably safe as manufactured by Beech, and that the plane was not aerodynamically sound. The plane had not been manufactured in Illinois and Beech had no connection with the sale of the plane to anyone in Illinois or its presence in Illinois before being flown to England. Beech responded that it had neither committed a tortious act in Illinois nor transacted business here.

The two majority opinions in the case upheld jurisdiction in Illinois based on different theories. One of the opinions concluded that Beech committed a tortious act within Illinois. The second majority opinion concluded jurisdiction was proper under section 13.3 of the Civil Practice Act (Ill.Rev.Stat.1973, ch. 110, par. 13.3) because Beech was doing business in Illinois. The observations of the majority opinion which relied on the "tortious act" provision of the long-arm statute are particularly relevant here:

"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'. * * * 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." Braband, at 301, 9 Ill.Dec. at 688, 367 N.E.2d at 122.

Based on these authorities, we...