Keckler v. Brookwood Country Club

• Citation: 248 F. Supp. 645
• Decision Date: 29 November 1965
• Docket Number: No. 65 C 1019.,65 C 1019.
• Parties: Harold G. KECKLER, Plaintiff, v. BROOKWOOD COUNTRY CLUB et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

248 F. Supp. 645

Harold G. KECKLER, Plaintiff, v. BROOKWOOD COUNTRY CLUB et al., Defendants.

No. 65 C 1019.

United States District Court N.D. Illinois, E. D.

November 29, 1965.

Philip H. Corboy, Chicago, Ill., for plaintiff.

Querrey, Harrow, Gulanick & Kennedy, Chicago, Ill., for defendant Versal, Inc.

DECKER, District Judge.

Plaintiff sues for damages for personal injuries suffered when a motorized golf cart tipped over and fell on him. The cart was manufactured by Versal, Inc., named as a defendant in Counts III and IV of the amended complaint. Count III charges negligence in the manufacture of the cart, and Count IV seeks recovery on a theory of strict liability in tort, in effect, an action on an implied warranty. Versal moves to quash service of process on it with respect to Count IV, although it submits to the jurisdiction of this Court with respect to Count III. A selective motion to quash, such as this one, is permissible where service is obtained under a "long arm" statute. National Gas Appliance Corp. v. AB Electrolux, 270 F.2d 472 (7th Cir. 1959). The motion to quash is granted.

Versal, an Indiana corporation with its principal place of business in Indiana, manufactured the cart in Indiana and sold it there to the Motorized Golf Company which, in turn, delivered it in Illinois to the Brookwood Country Club, the defendant in Counts I and II. For the purposes of this motion, I shall assume what defendant asserts and plaintiff does not deny, that Versal makes no sales or deliveries in Illinois and maintains no agents or offices in Illinois.

Service of process is governed by F.R.Civ.P. 4(d)(7) which provides that service may be obtained "in the manner prescribed by the law of the state in which the district court is held * *." The relevant Illinois law is the Illinois "long arm" statute, Ill.Rev.Stat. ch. 110 § 17, which provides for jurisdiction in Illinois courts and substituted service of process "as to any cause of action arising from * * * the commission of a tortious act within this State * * *." There are two questions to be answered in determining whether Versal may be served as to Count IV under the Illinois statute. The first is whether the "long arm" statute was intended to reach defendants such as Versal under the circumstances of this case — a question of state law. If Illinois does purport to exercise jurisdiction over Versal, then the question arises whether such an attempt violates the due process clause of the federal constitution. This is a question of federal law, and state authorities are not binding on it. Pulson v. American Rolling Mill Co., 170 F.2d 193 (1st Cir. 1948); Arrowsmith v. United Press International, 320 F.2d 219, 222 (2d Cir. 1963); Davis v. Asano Bussan Co., 212 F.2d 558, 562-563 (5th Cir. 1954); Aftanase v. Economy Baler Co., 343 F.2d 187, 190 (8th Cir. 1965).

I.

The first question is whether, as a matter of state law, the Illinois statute reaches Versal under Count IV. Versal concedes that service was proper under Count III, the negligence count, as it had to in light of Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961), which held that negligent manufacture of a product constitutes the doing of a "tortious act" in Illinois where the resulting injury occurs in Illinois. Accord, Anderson v. Penncraft Tool Co., 200 F.Supp. 145 (N.D.Ill.1961); McMahon v. Boeing Airplane Co., 199 F.Supp. 908 (N.D.Ill. 1961). The question is whether a different result is required when the basis of the action is strict liability in tort, or implied warranty.

Versal stakes its case on its characterization of the Count IV claim as a contract claim. However, the claim is not a traditional contract claim, and consequently, it is not governed by traditional rules for contract suits. A different sort of claim, not precisely within any traditional category, is involved here, and the task is to determine the appropriate treatment for it on its own merits.

While not a traditional tort claim, the claim here is more within the tort family than any other. Illinois courts have so labeled the implied warranty action. Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965); Greenwood v. John R. Thompson Co., 213 Ill.App. 371, 374 (1919). In light of the tendency of Illinois courts to label suits such as this with tort labels, there is no prima facie objection to including it within the "tortious act" language of the "long arm" statute.

Similarity of labels is not sufficient to close the issue, however, since there are differences between the usual tort suit and the suit based on strict liability in tort. These differences do not require a difference in treatment under the "long arm" statute, however. That statute states that certain relationships between nonresidents and Illinois are sufficient to permit local trial of nonresidents. That relationship is not distinguishable in a meaningful way for claims based on negligence and those based on strict liability in tort. In both cases, the bond between a nonresident and Illinois is the manufacture of a defective product at one end and a resulting injury at the other. In both cases, the purpose of invoking this relationship is to provide a local forum for an injured person to be compensated for his injuries. That the injury-producing defect in the product results in one case from negligence and may exist without fault in the other, has no impact on the relationship between the nonresident and Illinois.

Given the holding in Gray, supra, a negligence case, and finding no legally tenable reason for not reaching the analogous result here, I hold that the Illinois "long arm" statute must be construed to reach nonresident defendant manufacturers in strict liability in tort cases arising out of Illinois injuries.

II.

The question remains whether such service is permissible within the bounds of fairness established by the due process clause of the federal constitution, a question of federal law. The modern guiding standard has been evolving since International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L. Ed. 95, 161 A.L.R. 1057 (1945). In McGee v. International Life Insurance Co., 355 U.S. 220, 222-223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957), the Supreme Court took note of a trend "clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents." The Court added that "in part this is attributable to the fundamental transformation of our national economy over the years."

The current controlling rule was succinctly summarized in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L. Ed.2d 1283 (1958):

"* * * It is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Id. at 253, 78 S.Ct. at 1240.

Once a proper affirmative jurisdictional act has occurred by which the defendant may be said to have reached out to the forum state, the benefits and protections of local laws will be conclusively presumed. The question is whether Versal may be said to have done such an act, on the basis of the pleadings now before me.

Several courts have considered the question of what constitutes a sufficient act within the federal rule. There is little difficulty where the defendant has actually set foot in Illinois to commit the tort, even if that act is his only contact with the state. Nelson v. Miller, 11 Ill. 2d 378, 143 N.E.2d 673 (1957). The problem appears more difficult where, as here, the defendant has never physically entered the state. But the difficulty is more apparent than real.

In McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199 (1957), jurisdiction was sustained where the only act by defendant aimed at the forum state was a single transaction by mail addressed to a forum state resident. Clearly within this rule is Aftanase v. Economy Baler Co., 343 F.2d 187 (8th Cir. 1965), where service was permitted, under the Minnesota "long arm" statute, on a Michigan corporation which shipped small quantities of balers directly to Minnesota for a number of years. The Eighth Circuit observed that the defendant had "voluntarily" placed its products on the Minnesota market, derived benefit therefrom, and "reasonably could have anticipated that this activity would have consequences in this state."

Similarly, Roy v. North American Newspaper Alliance, 106 N.H. 92, 205 A.2d 844 (1964), permitted a libel suit in New Hampshire against a non-resident distributor of Drew Pearson's newspaper column. Chief Justice Kenison said that "the defendant could reasonably anticipate that the sale, distribution and promotion of the Pearson column and other news features might entail libel actions * * *." The defendant had directly promoted the column to New Hampshire newspapers. Accord, Nixon v. Cohn, 62 Wash.2d 987, 385 P.2d 305 (1963).

The cases indicate that jurisdiction depends in part on the reasonable anticipation of the defendant that he might be sued...