# Braband v. Beech Aircraft Corp.

> Appellate Court of Illinois · July 19, 1977 · 51 Ill. App. 3d 296

URL: https://www.frixlaw.com/law-library/cases/9539978

## Case

- **Full name:** GALE BRABAND Et Al., Plaintiffs-Appellees, v. BEECH AIRCRAFT CORPORATION, Defendant-Appellant.—(KOLLSMAN COMPANY, DIVISION OF SUN CHEMICAL CORPORATION Et Al., Defendants.)
- **Court:** Appellate Court of Illinois
- **Decided:** July 19, 1977
- **Citations:** 51 Ill. App. 3d 296; 9 Ill. Dec. 684; 367 N.E.2d 118; 1977 Ill. App. LEXIS 3114
- **Precedential status:** Published
- **Opinion:** Dissent by Downing
- **Judges:** Jiganti, Stamos, Downing
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Mr. PRESIDING JUSTICE DOWNING, dissenting:
For the following reasons I would reverse the circuit court of Cook County.
Plaintiffs in their brief in this court, in substance, asserted they would demonstrate that jurisdiction properly attaches in Illinois either (a) when defendant is “present” and “doing business” in Illinois, or (b) when defendant Beech committed a tortious act within this State (Ill. Rev. Stat. 1971, ch. 110, par. 17(1)(b)); i.e., “defendant’s negligent causation of pecuniary loss to Illinois resident survivors of the two accidents.”
Certain facts must be restated. The Beech aircraft was not manufactured in Illinois. It was manufactured by a Delaware corporation (Beech) whose principal office was in Kansas. It was originally sold in 1966 to a firm located in Texas; then in 1968, the plane was sold to a firm located in Nevada; then in 1971, sold to Coleman Aircraft Corp. (Coleman) of Morton Grove, Illinois, which firm, in 1971, arranged to sell the plane to a British company. While the plane was being flown to the British firm, the ill-fated accident occurred in Canada on December 10, 1971.
There is nothing in the record to indicate or suggest that (1) the subject plane was manufactured in Illinois; or (2) defendant Beech or Hartzog Aviation, Inc., of Rockford, Illinois, ever sold or had any connection with the sale of this plane to anyone in the state of Illinois; or that the decedents had any connection with Coleman. With this by way of background, it is important to examine the two theories of my colleagues.
At the outset it is to be noted that once jurisdiction has been challenged, the burden of proving its presence rests on the party asserting it. Houghton v. Piper Aircraft Corp. (1975), 112 Ariz. 365 , 542 P.2d 24, 26 ; Williams v. Connolly (D.C. Minn. 1964), 227 F. Supp. 539 .
Tortious Act Theory
Was a tortious act committed in Illinois so as to ensnare Beech in this jurisdictional quagmire? My answer is “no.” I cannot stretch the words of section 17(l)(b) to believe the legislature ever foresaw such a result, or if they did, then I think the statute violates the due process rights of Beech.
Section 17, so far as pertinent, provides:
“(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:
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(b) The commission of a tortious act within this State;
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(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.” Ill. Rev. Stat. 1971, ch. 110, par. 17(1)(b), (3).
The affirming opinion states: “I believe that a tortious act was committed by the delivery into Illinois of a plane that was allegedly unreasonably dangerous.” Yet there is nothing in the record to indicate either Beech or Hartzog had anything whatsoever to do with that delivery. It might be argued that when Beech manufactured the plane and introduced it into the stream of commerce by a sale to a Texas firm, it would be ultimately responsible for a delivery in Illinois. I am not prepared to stretch that fiction to such an absurd conclusion.
The plaintiffs base their claim on the theory of strict liability of Beech as the airplane manufacturer. Because the plane, at least five years after its manufacture in Kansas, was in Illinois prior to its last flight, it is contended, “[a] duty was owed to the residents of Illinois.”
In the cited case of Mieher v. Brown (1973), 54 Ill. 2d 539, 541 , 301 N.E.2d 307 , a case involving an autortruck accident in Illinois, the supreme court concerned itself with the question of common law negligence. In so doing, it discussed a duty owed by the truck manufacturer to the decedent. In discussing the issues of duty to examine reasonable care in designing a motor vehicle and the question of foreseeability, the supreme court placed some restraint on the doctrine of duty. In my opinion there is nothing in that case to provide the plaintiffs under these circumstances a steady prop upon which to base jurisdiction.
It is said that the word “ ‘tortious’ 0 0 0 should include the delivery of the allegedly defective plane.” But who delivered this plane in Illinois? Not Beech or Hartzog. Certainly this type of prop is much too unstable to support a theory of jurisdiction.
It should be noted that nothing I say in any way suggests plaintiffs might not have a strict product liability case against Beech. I am simply saying the courts of Illinois should not be used to find out.
Nor do I think the International Shoe Co. v. Washington (1945), 326 U.S. 310 , 90 L. Ed. 95 , 66 S. Ct. 154 ; Nelson v. Miller (1957), 11 Ill. 2d 378 , 143 N.E.2d 673 ; or Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill. 2d 432 , 176 N.E.2d 761 , cases support plaintiffs’ theory of jurisdiction under the “tortious act theory.”
International Shoe 1 did not involve a tortious act. It held that a Delaware corporation employing shoe salesmen in the state of Washington rendered itself amenable to proceedings in Washington to recover unpaid contributions to the State unemployment compensation.
Nelson involved an Illinois resident who was injured in Illinois while assisting an employee of a Wisconsin firm that was delivering a gas cooking stove sold to the plaintiff in Illinois. The factual background is as different from the instant case as day is from night. Thus, in discussing section 17(1) (b) and the word “tortious,” the supreme court said, “[t]he essential question in cases of this type is where the action is to be tried.” As said by Mr. Justice Schaeffer:
“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.” (Emphasis added.) 11 Ill. 2d 378, 393 .
As has been noted, Beech was not the author of any act or omission within the State of Illinois which established circumstances to make this State the appropriate forum.
Gray involved a water heater, manufactured in Ohio, which exploded in Illinois injuring the plaintiff, an Illinois resident. As stated by the supreme court in considering section 17(l)(b), a jurisdictional question depends on whether the tortious act was committed in Illinois. The supreme court said:
“The wrong in the case at bar did not originate in the conduct of a servant physically present here, but arose instead from acts performed at the place of manufacture. Only the consequences occurred in Illinois. It is well established, however, that in law the place of a wrong is where the last event takes place which is necessary to render the actor liable.” (Emphasis added.) 22 Ill. 2d 432, 435 .
In the instant case the consequences, and the last event necessary to render Beech possibly liable, occurred in Canada. The consequences and last event in both Nelson and Gray clearly took place in Illinois. To suggest that the consequences and last event in the subject case took place in Illinois is to strain reality beyond reasonable credibility.
To determine if there are minimum contacts necessary to satisfy due process requirements necessitates a case-by-case examination of the facts. What are the minimum contacts of Beech to Illinois in this case? It is suggested that because the plane was centered in Illinois when the decedents boarded the plane and started their trip to England, there is sufficient minimum contact to meet due process requirements. I think not. Beech had nothing to do with the plane being in Illinois, nor the trip to England. So far as the record before this court indicates, the only contact the decedents had with the plane occurred in the fatal trip. As was said in McBreen v. Beech Aircraft Corp. (7th Cir. 1976), 543 F.2d 26, 32 , * ° there remain due process outer limits on the reach of a state’s long-arm jurisdiction.” The thin thread of pecuniary loss to the plaintiffs in Illinois, in my opinion, is too weak a connection to lift these facts outside the reach of the due process clause. I believe the minimum contact standard elucidated in International Shoe is violated.
It is suggested that Beech caused the effects in the State of Illinois, and the effects could have been anticipated. What effect? Plaintiffs are the administrators of the estates of two deceased pilots, both of whom were Illinois residents. As I understand the real effect of the trial court’s action and its affirmance by this plurality opinion, the Illinois residents are to be protected regardless of due process constraints. I do not find any tortious act in Illinois. To hold that there is such a tortious act, in my opinion, clearly violates the due process rights of Beech.
Accordingly, I cannot find that plaintiffs should prevail under the so-called “tortious act theory.”
Doing Business Theory
I concur with Justice Jiganti’s conclusion that he does “not believe that Beech engaged in a continuous and systematic course of business” in the State of Illinois. It is said that defendant Beech is amenable to service of process in Illinois by virtue of its contractual relationship with its distributor Hartzog. Section 13.3 of the Civil Practice Act provides the nexus between nonresident Beech and Hartzog. The basis for this jurisdiction is that the office of Hartzog is agent-in-fact for service of process upon Beech. In other words, Beech is present and doing business in Illinois.
Because Hartzog had a sales agreement with Beech, whereby it acted as a franchisee for the sale of new Beech airplanes in part of the State of Illinois, and to perform service and maintenance on customer airplanes, it is concluded that Beech is present within the State of Illinois within the context of International Shoe. Again I disagree on the basis that the facts in International Shoe are sufficiently distinguishable so as to destroy any support it might offer. In that case the salesmen were regularly employed and resided in the State of Washington; their principal activities were confined to that State; and they were compensated based upon the amount of their sales in the State of Washington. A dispute arose over whether their out-of-State employer was required to pay to a State unemployment compensation fund. No one could really argue that there were sufficient contacts or ties to make it reasonable and just to enforce such obligations against the out-of-State employer. Those contacts did not offend the traditional notions of fair play and substantial justice.
But, so far as this record shows, there can be no comparison between the activities of Beech or Hartzog in Illinois and the activities of the shoe salesmen in the State of Washington. As was said in International Shoe, “[wjhether 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.” ( 326 U.S. 310, 319 , 90 L. Ed. 104 , 66 S. Ct. 154 .)) I do not believe that due process is satisfied in the case at bar because, in my opinion, the activities of neither Beech nor Hartzog constitute “doing business” in Illinois.
What then is “doing business”? In the recent case of Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321 , 368 N.E.2d 88 , our supreme court discussed this phrase as it is used in the context of the venue statute. In doing so it distinguished the phrase as it is used in a jurisdictional context. It is significant to note the following language:
“No firm rule as to what constitutes doing business for jurisdictional purposes is discernible from the cases. As Judge Learned Hand stated: ‘It is quite impossible to establish any rule from the decided cases; we must step from tuft to tuft across the morass.’ Hutchinson v. Chase & Gilbert, Inc. (2d Cir. 1930), 45 F.2d 139, 142 .” 67 Ill. 2d 321, 327 .
So now we must look at just what facts are involved in this case. Beech had a sales agreement with Hartzog whereby the latter was franchised to sell and service Beech airplanes in 19 counties of Illinois. 2 The agreement was for one year with a 30-day termination clause. Although a copy of the agreement in the record was for 1973-1974, and the accident took place in 1971, we can find nothing in the record as to whether a similar agreement was in effect on December 10, 1971. As this point was not raised, we assume for purposes of this discussion that such an agreement was in effect in 1971. Considerable significance is placed upon the provision of the Beech-Hartzog agreement, which by its terms has as its stated objective the sale of seven airplanes. But rather than relying solely upon boiler plate provisions in a franchise agreement, it seems to me that it is equally meaningful to stress the realities of the relationship.
Beech is incorporated in Delaware and has its offices and principal place of business in Wichita, Kansas. Beech has no officers, directors, or employees living, residing, or stationed in Illinois. It has no offices or other places of business in Illinois. Beech is not qualified, authorized, or otherwise licensed or chartered to do business in Illinois. Beech owns no real estate in Illinois and pays no taxes here. It holds no licenses, charters, or permits issued by this State or by any subdivision thereof. Beech has appointed no agent for service of process in Illinois.
The test for “doing business” should be a pragmatic one. (Bryant v. Finnish National Airline (1965), 15 N.Y.2d 426 , 260 N.Y.S.2d 625 , 208 N.E.2d 439 .) As in the International Shoe case, the activity within the State should have that continuity and permanence which gives rise to the liability sued on. It should be a continuous and systematic course of business. More contacts are required than sales and sales promotion within the State of Illinois by independent nonexclusive sales representatives. Houghton v. Piper Aircraft Corp. (1975), 112 Ariz. 365 , 542 P.2d 24, 27 ; cf. Lindley v. St. Louis-San Francisco Ry. Co. (7th Cir. 1968), 407 F.2d 639, 642, 643 .
Hartzog is not a party defendant. Neither Beech’s activities in Illinois, nor those of Hartzog in Illinois, had anything to do with this cause of action. To say otherwise is to engage in fiction bordering on fantasy. Applying a realistic, pragmatic test to the facts before us, Beech’s activities in Illinois — if any — are not so pervasive to justify jurisdiction in Illinois of a cause of action not related to Beech’s alleged Illinois activities. Aanestad v. Beech Aircraft Corp. (9th Cir. 1974), 521 F.2d 1298 , 1301, cert. denied (1974), 419 U.S. 998 .
To hold this State has jurisdiction under the minimal contacts set forth in this record would subject Beech, or any similar corporation, to suit in any State of the United States. To me this would offend the traditional notions of fair play and substantial justice. In my opinion it would violate defendant’s due process rights.
In conclusion, the delicate balancing of the rights of the party litigants is always a troublesome task. Coupled with those rights is always the problem of accommodating witnesses. Someone is always inconvenienced. But on balance it would appear, that aside from the attorneys, a trial of this cause in Illinois would inconvenience more people. I do not think plaintiffs have established a proper basis for jurisdiction in Illinois. Therefore, for aU of these reasons I would reverse and remand with directions that the circuit court of Cook County grant the motion to quash service of process and to dismiss for lack of jurisdiction.
For a recent discussion of a State court’s exercise of in rem or quasi-in rem jurisdiction and the “minimum contact” test of International Shoe, see Shaffer v. Heitner (June 24, 1977), 45 U.S.L.W. 4849 .
In addition to the 19 of 102 counties in Illinois, the agreement provided Hartzog was franchised in certain counties in Indiana, Michigan, and Wisconsin.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9539978. Public record. Not legal advice.