Appendix — Beech Aircraft Corp. v. Braband

° ete.

— Supreme Court, U. LW

FILED :

FEB 28 1979 |

In the

Supreme Court of the Anited States

7 78-1328

BEECH AIRCRAFT CORPORATION,

Petitioner,

VS.

GALE BRABAND and ELIZABETH FORSYTHE,

Respondents.

APPENDIX TO ACCOMPANY

PETITION. FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF ILLINOIS

LORD, BISSELL & BROOK

115 S. LaSalle Street

Chicago, Illinois 60603

(312) 443-0342

Attorneys for Petitioner

Witurm P. BuTLer

Gary W. WESTERBERG

Hueu C. Grirrin

Of Counsel

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

INDEX TO APPENDIX

PAGE

Amended Complaint at Law ................ccccccesccssesseeseees 1

RIC IRIE NEN ean arom cP OT SRN deanna 8

Cireuit Court Order Denying Motion to Quash ............ 12

Opinion of Illinois Appellate Court —..0.22...22 2. 14

Certificate of Importance Issued by Appellate Court... 41

Opinion of Illinois Supreme Court 00.0000... eee 42

Order of Supreme Court Denying Petition for Re-

OPEITIIIEE -chcssapniphinitescinsstnetilecsnsedlansibeudisbostdbipibdelsalabetabibiticpaieiahbian 55

APPENDIX

Strate or Inurnots_ )

) SS.

County or Cook )

IN THE CIRCUIT COURT OF COOK COUNTY

COUNTY DEPARTMENT, LAW DIVISION

No. 73 L 18675

GALE BRABAND, Administrator of the Estate of JAMES

L. BRABAND, Deceased, and KLIZABETH FORSYTHE,

Administrator of the Estate of DONALD R. FORSYTHE,

Deceased,

Plaintiffs,

VS.

BEECH AIRCRAFT CORPORATION, a corporation,

KOLLSMAN COMPANY, DIVISION OF SUN CHEMI-

CAL CORPORATION, a corporation, and EAGLE AIR-

CRAFT SERVICES, LTD., a corporation,

Defendants.

AMENDED COMPLAINT AT LAW

COUNT I

Now comes plaintiffs, GALE BRABAND, Administrator

of the Estate of JAMES L. BRABAND, Deceased; and

ELIZABETH FORSYTHE, Administrator of the Estate

of DONALD R. FORSYTHE, Deceased, complains of the

defendant, BEECH AIRCRAYT CORPORATION, a cor-

poration, and KOLLSMAN COMPANY, DIVISION OF

App. 2

SUN CHEMICAL CORPORATION, a corporation, as

follows:

1. On and prior to December 10, 1971, the defendants,

BEECH AIRCRAFT CORPORATION, a corporation, and

KOLLSMAN COMPANY, DIVISION OF SUN CHEMI-

CAL CORPORATION, a corporation, were duly organized

and acting according to law and engaged in the business

of designing, constructing, assembling, selling and dis-

tributing certain aircraft and avionic systems and compo-

nent parts and in particular, did design, construct, assemble

and sell a certain Beechcraft Queen Air 65 B 80 Multi-

engine aircraft, registration number N-929V, Serial num-

ber LD-325 (hereinafter referred to as the ‘‘airplane’’) ;.

and, defendant, KOLLSMAN COMPANY, DIVISION OF

SUN CHEMICAL CORPORATION, a corporation, did

design, construct, assemble and sell an avionic component

known as Kollsman Altimeter which was included as one

of the avionic components in said airplane (hereinafter

referred to as the ‘‘altimeter’’).

2. On and prior to December 10, 1971, defendant, Beech

Aircraft Corporation transacted business in Illinois by

and through its various agents and employees including

but not limited to COLEMAN AIRCRAFT INC., a cor-

poration and NATIONAL AIR INC., a corporation.

3. On December 10, 1971, plaintiff’s decedents and

JAMES N. GOING were aboard the said airplane as oc-

cupants riding within the airplane from Chicago, Illinois

to London, England via the airport at Frobisher Bay in

the Northwest Territories, Canada.

4. 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:

App. 3

a. That the airplane was not acrodynamically 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.

e. That the altimeter was manufactured and sold

without any warnings that it was likely not to re-

flect 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.

5. As a proximate result of one or more of the fore-

going unsafe conditions of the airplane and the altimeter,

plaintiff’s decedents were killed when the airplane crashed

on December 10, 1971.

6. At the time and place aforesaid plaintiff’s decedents

JAMES L. BRABAND and DONALD R. FORSYTHE

were in the exercise of ordinary care for their own safety.

7. The plaintiff, GALE BRABAND, administrator of

the Estate of JAMES L. BRABAND, deceased, and

ELIZABETH FORSYTHE, Administrator of the Estate

of DONALD R. FORSYTHE, deceased, bring herewith

Letters of Administration granted them by the Probate

Court, Cook County, Illinois as evidence to their right to

sue.

8. On December 10, 1971, there was in full force and

effect in the State of Illinois the statute commonly known

as the Wrongful Death Act, Chapter 70, Section 1 and 2

of the Illinois Revised Statute and plaintiffs bring this

action pursuant to said act.

App. 4

9. The decendent, James L. Braband left surviving the

following :

GALE BRABAND, his wife;

PHILIP JAMES BRABAND, his son

JOSEPH ALLEN BRABAND, his son

AMY LINNE BRABAND, his daughter

The decedent, Donald R. Forsythe, left surviving the

following:

ELIZABETH FORSYTHE, his wife;

PATRICIA FORSYTHE, his daughter

MICHAEL FORSYTHE, his son

SUSAN FORSYTHE, his daughter

TIMOTHY FORSYTHE, his son

10. Each of the survivors of the decendants’ JAMES L.

BRABAND and DONALD R. FORSYTHE, have sustained

substantial pecuniary loss as a proximate result of the

death of their respective decedents.

WHEREFORE, the plaintiff, ELIZABETH FOR-

SYTHE, Administrator of the Estate of DONALD R.

FORSYTHE, Deceased; asks for judgment against the

defendants, BEECH AIRCRAFT CORPORATION, a cor-

poration and KOLLSMAN COMPANY, DIVISION OF

SUN CHEMICAL CORPORATION, a corporation, in the

sum of ONE MILLION ($1,000,000.00) DOLLARS.

COUNT II

Now comés plaintiffs, GALE BRABAND, Administrator

of the ESTATE of JAMES L. BRABAND, Deceased, and

ELIZABETH FORSYTHE, Administrator of the Estate

of DONALD R. FORSYTHE, Deceased, and complaints

of the defendant, EAGLE AIRCRAFT SERVICES, LTD.,

a corporation, as follows:

1. On or prior to December 10, 1971, EAGLE AIR-

CRAFT SERVICES, LTD., (hereinafter referred to as

App. 5

‘*HAGLE’’), owned, operated, managed, maintained and

controlled an airplane known as a Beechcraft Queen Air

65 B 80 Multiengine aircraft, registration number N-929V,

Serial number LD-325, (hereinafter referred to as the ‘‘air-

plane’’).

2. On and prior to December 10, 1971, the defendant,

EAGLE, contracted with the plaintiffs’ decedents and

JAMES N. GOING to transport, pilot and/or ferry the

airplane from Chicago, Illinois to London, England, via

the airport at Frobisher Bay in the Northwest Territories,

Canada.

3. On and prior to December 10, 1971, the defendant,

EAGLE, had purchased the airplane from COLEMAN

AIRCRAFT, INC., of Morton Grove, Illinois, and gave

permission of, bailed and entrusted the airplane to the

plaintiff’s decedents and JAMES N. GOING for the pur-

pose of ferring said airplane from Chicago, Illinois to

London, England.

4. On and prior to December 10, 1971, defendant,

EAGLE, was a corporation duly organized according to

the laws of England and was doing business in the State

of Illinois.

5. On and prior to December 10, 1971, plaintiffs’ de-

cedents and JAMES N. GOING, occupied the airplane from

Chicago, Illinois to a point somewhere in Frobisher Bay,

Northwest Territories, Canada.

6. At the time and place aforesaid and while attempt-

ing a landing approach from the southwest, the airplane

struck a terrain obstacle some distance southwest of Fro-

bisher Bay and crashed.

=

7. “At the time and place aforesaid plaintiffs’ decedents

JAMES L. BRABAND and DONALD R. FORSYTHE,

were in the exercise of ordinary care for their own safety.

App. 6

8. Prior to and at the time of the occurrence complained

of, defendant, EAGLE, by and through its various agents

and employees while acting in the course and scope of

their employment, was guilty of one or more of the follow-

ing negligent acts or omissions:

a. Entrusted, bailed and gave possession of the air-

plane to the plaintiffs’ decedents in a condition

which was not reasonably safe so as to be a proxi-

mate cause of death of decedents.

b. Failed to service and maintain the airplane, in

accordance with applicable maintenance and ser-

vice regulations as prescribed by the Federal

Aviation Agency.

ce. Failed to inspect and test the airplane to deter-

mine the airworthiness of the control and naviga-

tion mechanisms including but not limited to the

automatic pilot assembly.

9. As a proximate result of one or more of the fore-

going negligent acts and omissions, the airplane crashed,

and the plaintiffs’ decedents, JAMES L. BRABAND and

DONALD R. FORSYTHE, came to their death on Decem-

ber 16, 1971.

10. The decedent, JAMES L. BRABAND, left surviv-

ing the following:

GALE BRABAND, his wife

PHILIP JAMES BRABAND, his son

JOSEPH ALLEN BRABAND, his son

AMY LINNE BRABAND, his daughter

The decedent, DONALD R. FORSYTHE, left surviving

the following:

ELIZABETH FORSYTHE, his wife

PATRICIA FORSYTHE, his daughter

MICHAEL FORSYTHE, his son

SUSAN FORSYTHE, his daughter

TIMOTHY FORSYTHE, his son

App. 7

11. Hach of the survivors of the decedents, JAMES L.

BRABAND and DONALD R. FORSYTHE, have sustained

substantial pecuniary loss as a proximate result of the

death of their respective decedents.

12. Before and at the time of the occurrence complained

of, each of the survivors of the decedents, JAMES L.

BRABAND and DONALD R. FORSYTHE, was in the

exercise of ordinary care for their own safety.

13. On December 10, 1971, there was in full force and

effect in the State of Illinois the statute commonly known

as the Wrongful Death Act Chapter 70 Section 1 and 2 of

the Illinois Revised Statutes and plaintiffs bring this

action pursuant to said act.

14. The plaintiff, GALE BRABAND, Administrator of

the Estate of JAMES L. BRABAND, deceased, and

ELIZABETH FORSYTHE, Administrator of the Estate

of DONALD R. FORSYTHE, deceased, bring herewith

Letters of Administration granted them by the Probate

Court, Cook County, [Illinois as evidence to their right to

sue.

WHEREFORE, the plaintiff, ELIZABETH FOR-

SYTHE, Administrator of the Estate of DONALD R.

FORSYTHE, Deceased asks judgment against the defen-

dant, EAGLE AIRCRAFT SERVICES, LTD., a corpora-

tion, in the sum of ONE MILLION ($1,000,000.00) DOL-

LARS.

WHEREFORK, the plaintiff, GALE BRABAND, Ad-

ministrator of the Estate of JAMES L. BRABAND, De-

ceased, asks for judgment against the defendant, EAGLE

AIRCRAFT SERVICES, LTD., a corporation, in the

sum of ONE MILLION ($1,000,000.00) DOLLARS.

/s/ Philip H. Corboy & Assocs.

Attorney for Plaintiff

App. 8

State or Iuurnors_)

) SS.

County or Cook )

IN THE CIRCUIT COURT OF COOK COUNTY

COUNTY DEPARTMENT, LAW DIVISION

No. 73 L 18675

GALE BRABAND, Administrator of the Estate of JAMES

L. BRABAND, Deceased; and, ELIZABETH FORSYTHE,

Administrator of the Estate of DONALD R. FORSYTHE,

Deceased,

Plaintiffs,

vs.

BEECH AIRCRAFT CORPORATION, a corporation,

KOLLSMAN COMPANY, DIVISION OF SUN CHEMI-

CAL CORPORATION, a corporation, and EAGLE AIR-

CRAFT SERVICES, LTD., a corporation,

Defendants.

Filed May 13, 1974

MOTION TO QUASH |

NOW COMES defendant BEECH AIRCRAFT COR-

PORATION, a corporation, by its attorneys LORD, BIS-

SELL & BROOK, appearing specially herein solely and

specifically for the purpose of objecting to the jurisdiction

of the court over this defendant and for such purpose,

and only for such purpose, moves the court to vacate and

quash the service attempted to be made on it directly or

App. 9

threugh its alleged agents in this cause. In support of said

motion defendant BEECH AIRCRAFT CORPORATION

files herewith and makes part hereof a copy of the affidavit

of JOHN A. ELLIOT which affidavit has been previously

filed herein.

LORD, BISSELL & BROOK

Attorneys for Defendant

Beech Aircraft Corporation

Appearing Specially

App. 10

IN THE CIRCUIT COURT OF COOK COUNTY

COUNTY DEPARTMENT, LAW DIVISION

No. 73 L 18675

GALE BRABAND, Administrator of the Estate of JAMES

L. BRABAND, Deceased; and, ELIZABETH FORSYTHE,

Administrator of the Estate of DONALD R. FORSYTHE,

Deceased,

Plaintiffs,

vs.

BEECH AIRCRAFT CORPORATION, a corporation,

KOLLSMAN COMPANY, DIVISION OF SUN CHEMI-

CAL CORPORATION, a corporation, and FAGLE -

CRAFT SERVICES, LTD., a corporation,

Defendants.

AFFIDAVIT OF JOHN A. ELLIOTT

Strate or Kansas )

) SS:

County OF SEDGWICK )

Personally appeared before the undersigned officer duly

authorized to administer oaths, John A. Elliott, who on

oath deposes and testifies as follows:

1. My name is John A. Elliott. I am Vice President

and Treasurer of Beech Aircraft Corporation (‘‘Beech’’),

defendant in the above-entitled case, and I am a resident

of Wichita, Kansas. I make this affidavit for use in sup-

port of defendant Beech’s attack on jurisdiction in this

ease, and for all other purposes authorized by law.

2. Beech has no officers, directors or employees living

or residing or stationed in Illinois.

App. 11

3. Beech has no offices, plants, factories or other places

of business in Illinois.

4. Beech is not qualified, authorized or otherwise

licensed or chartered to do business in Illinois under Illi-

nois corporation laws, and Beech has no agent for service

of process in Illinois. Beech is not an Illinois corporation.

5d. Beech does not own or lease any real estate in Illinois.

6. Beech does not hold any licenses, charters or per-

mits granted or issued by the State of Illinois or by any

county or municipal government in Illinois.

7. Beech is a corporation incorporated under the laws

of the State of Delaware. Beech’s principal office and

place of business is in Wichita, Kansas. In addition to

Delaware and Kansas, Beech is authorized and qualified

under the laws of Colorado to do business in that state.

Beech is not authorized or qualified to do business under

the laws of any other state.

8. Beech does not pay any Illinois taxes.

9. The accident involving a Queen Air B80 bearing

Beech serial number LD325 and Federal Aviation Regis-

tration Number N-929V occurred on December 10, 1971

at Frobisher Bay, Canada and not in the state of Illinois.

John A. Elliott

JOHN A. ELLIOTT

SUBSCRIBED AND SWORN TO BEFORE ME, a

Notary Public on the 7th day of January, 1974.

Jeanne M. Hildebrant

Notary Public

My commission Expires:

July 19, 1977

(Notary Seal)

App. 12

IN THE CIRCUIT COURT OF

COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT — LAW DIVISION

No. 72 L 16617

GALE BRABAND, Administrator of the Estate of JAMES

L. BRABAND, Deceased, and ELIZABETH FORSYTHE,

Administrator of the Estate of DONALD R. FORSYTHE,

Deceased,

Plaintiffs,

v.

BEECH AIRCRAFT CORPORATION, a corporation,

KOLLSMAN COMPANY, DIVISION OF SUN CHEMI-

CAL CORPORATION, a corporation, and FAGLE AIR-

CRAFT SERVICES, LTD., a corporation,

Defendants.

Entered 7/28/75

ORDER

Proposed — Agreed

This matter having come on for hearing on the motion

of BEECH AIRCRAFT CORPORATION appearing spe-

cially to dismiss plaintiffs’ complaint and quash service of

process on the ground that defendant BEECH is not ame-

*nable to process issued by a Court of the State of Illinois,

the Court having heard the arguments of counsel and be-

ing fully advised in the premises, finds as follows:

1. Beech can foresee and knows that aircraft which

they manufacture will be flown by Illinois residents;

App. 13

2. The crash of the Beech Queen Air aireraft near

Frobisher Bay, Northwest Territories, Canada, resulted

in the death of plaintiffs’ decedents who were residents of

the State of Illinois;

3. It does not offend the traditional notions of fair

play and effective justice to require Beech to defend this

action in the courts of Illinois, when the action involves

deaths of Illinois residents because of an alleged defect in

the aircraft, and;

4. That, based upon the above findings, defendant Beech

is amenable to process issued by a court of the State of

Illinois with respect to this action.

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED AS FOLLOWS:

1. That defendant Beech’s motion to dismiss is denied,

and

2. That defendant Beech shall answer or otherwise plead

to plaintiffs’ complaint within 28 days.

THE COURT FURTHER SPECIFICALLY FINDS:

1. That this order involves a question of law as to

which there is a substantial ground for difference of opin-

ion, and

2. That an immediate appeal from the order may ma-

terially advance the ultimate termination of the litigation.

PHILIP H. CORBOY & ASSOCIATES

Attorneys for Plaintiffs

33 North Dearborn Street

Chicago, Illinois 60602

346-3191

App. 14

OPINION OF ILLINOIS APPELLATE COURT

Gale BRABAND and Elizabeth Forsythe,

Plaintiffs-A ppellees,

Vv.

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.

Administrators of estate of two pilots, Illinois residents

who were killed in crash of airplane in Canada after plane

took off for England from Illinois where it had been based

for period of time, brought suits under Wrongful Death

Act against foreign corporation which manufactured air-

craft in Kansas. After consolidation of suits for trial, the

Cireuit Court, Cook County, Nicholas J. Bua, P. .J., denied

manufacturer’s motion to quash service of process and

certified question for interlocutory appeal. The Appellate

Court, Jiganti, J., held that: (1) word ‘‘tortious’’ in long-

arm statute included delivery of allegedly defective plane;

(2) manufacturer had sufficient minimum contacts with

Illinois to satisfy due process requirements; (3) aceord-

ingly, Illinois court had jurisdiction over manufacturer on

basis of ‘‘tortious act’’ committed in Illinois and (4) manu-

facturer was not engaged in continuous and systematic

course of business in Illinois so as to give rise to jurisdic-

tion under present and doing business theory.

Affirmed.

Stamos, filed specially concurring opinion.

Downing, P.J., fiied dissenting opinion.

App. 15

1. Corporations — 665(3)

Distinction between ‘‘present and doing business’’ theory

and ‘‘transaction of business’’ theory is that under former,

a corporation that engages in a continuous and systematic

course of business in state becomes subject to state’s juris-

dition even though subject lawsuit may have no relation-

ship to business that corporation does within state, while

under latter theory, if corporation transacts any business

within state and cause of action arises from that trans-

action, then state has jurisdiction. S.H.A. ch. 110, §§ 13.3,

17(1) (a).

See publication Words and Phrases for other ju-

dicial constrictions and definitions.

2. Corporations — 665(3)

Word ‘‘tortious,’’ considering history of word in its

context in Civil Practice Act, included delivery of allegedly

defective airplane to corporate buyer in Illinois and con-

sequently, assuming due process demands were met, Illi-

nois court had jurisdiction under long-term statute over

foreign corporation which manufactured airplane in Kan-

sas, in wrongful death actions brought by administrators

of estates of two Illinois residents killed in crash in Canada

after taking off for England from Illinois, where plane

had been based for a period of time S.H.A. ch. 110, § 17

(1) (b); S.H.A. ch. 70, §§ 1, 2.

See publication Words and Phrases for other judicial

constructions and definitions.

3. Corporations—642(1).

Foreign corporation which manufactured in Kansas air-

eraft which was ultimately delivered to buyer in Illinois

was not engaged in continuous and systematic course of

business in Illinois so as to subject it to jurisdiction of

Illinois court under ‘‘present and doing business’’ theory

in wrongful death actions arising out of crash in Canada

after taking off for England from Illinois where plane

had been based for period of time. S.H.A. ch. 110, § 13.3.

App. 16

4. Courts — 12(2)

In determining scope of word ‘‘tortious’’ contained in

long-arm statute, word had to be examined in light of due

process tests for jurisdiction, i.e., fair and reasonable in

circumstances, minimal contacts so that suit does not of-

fend traditional notions of fair play and substantial justice,

and contacts with state to make it reasonable for defendant

to defend in a foreign state when estimating inconveniences,

and in light of prior judicial interpretation that intent of

legislature was that long-arm statute reflect a conscious

purpose to assert jurisdiction over nonresident defendant

to extent permitted by due process. S.H.A. ch. 110, $§ 17,

17(1)(b); S.H.A.Const.1970, art. 2, § 2; U.S.C.A.Const.

Amend. 14.

>. Torts—1

A tort, to be an actionable wrong, requires a duty, breach

of duty and an injury.

6. Torts —1

Whether injury or death, Illinois has right to provide

redress against those who inflict injuries upon those within

ambit of state’s legitimate protective policy.

7. Courts —12(2)

Not all tortious acts necessarily satisfy minimum contacts

required by due process for exercise of jurisdiction over

nonresident defendant under Tong-arm statute. U.S.C.A.

Const. Amend. 14; S.H.A.Const.1970, art. 2, § 2; S.H.A.

ch. 110, § 17(1)(b).

8. Constitutional Law — 305(6)

Where airplane sold to company in Illinois was based in

that state for period of time prior to fatal crash in Canada

while en route to England, pilots, Illinois residents, killed

in that crash boarded plane in Illinois, and pecuniary loss

resulting from loss of income and moral training and su-

perintendence of education occurred in Illinois, foreign

App. 17

corporation which manufactured airplane in Kansas had

sufficient minimum contacts with Illinois to satisfy due

process so as to afford Lllinois court jurisdiction over

manufacturer in wrongful death actions commenced against

it by administrators of pilots’ estates S.H.A. ch. 110,

$ 17(1)(b); S.H.A.Const.1970, art 2, § 2; U.S.C.A.Const.

Amend. 14.

9. Corporations — 665(3)

It is not offensive to traditional notions of fair play

and substantial justice to say to manufacturer of transient

produet such as an airplane that it must defend lawsuit in

a reasonably foreseeable place. U.S.C.A.Const. Amend. 14;

S.H.A.Const.1970, art 2, § 2.

10. Courts — 28

It was proper for Illinois court to estimate ‘‘incon-

veniences’’ in considering reasonableness of requiring

foreign corporation, which manufactured airplane in Kan-

sas, to defend away from its principal place of business

wrongful death actions commenced by administrators of

estates of two pilots, Illinois residents, killed in crash in

Canada after taking off from Illinois for England. U.S.C.A.

Const. Amend. 14; S.H.A.Const.1970, 2, § 2.

Lord, Bissell & Brook, Chicago, for defendant-appellant ;

Hugh C. Griffin, Chicago, of counsel.

Philip H. Corboy & Associates, Chicago, for plaintiffs-

appellees; Susan KE. 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 al-

lowed an appeal from the order.

App. 18

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 heen 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 IIli-

nois 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 Wrong-

ful Death Act (Tll.Rev.Stat.1970, ch. 70, pars. 1, 2).

The complaints as they pertained to Beech charged

that the airplane and altimeter were designed, manufac-

tured, assembled and sold in the condition that was not

reasonably safe in that the airplane was not aerodynam-

ically sound and was likely to crash when flown in a rea-

sonably foreseeable manner; that the altimeter was manu-

factured 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 warn-

ings that it was likely not to reflect an accurate altitude

reading when being flown in a manner which was reason-

ably foreseeable. Further, as a proximate result of one or

more of the unsafe conditions alleged the plaintiffs’ de-

cedents were killed when the plane crashed.

[1-3] The plaintiffs contend that the [llinois 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 con-

App. 19

cede 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 busi-

ness’’ 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. Lowis-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 be-

lieve that Beech engaged in a continuous and systematic

course of business.

The Illinois Supreme Court in the case of Nelson v.

Miller, (1957), 11 Tll.2d 378, 143 N.E.2d 673, had occasion

to consider the constitutionality of the 1955 amendments to

sections 16 and of the Civil Practice Act. Section 16

concerns weft the manner of personal service of

process outs#ie of the State under the long-arm statute

and is not pertinent to this opinion. ‘he amendments

to those sections authorized the entry of judgments im

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 em-

ployees 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

App. 20

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 forth-

right and realistic considerations of fairness in the

determination of what constitutes jurisdiction to deter-

mine personal rights. * * * The foundations of juris-

diction include the interest that a State has in provid-

ing redress in its own courts against persons who in-

flict injuries upon, or otherwise incur obligations to,

those within the ambit of the State’s legitimate pro-

tective policy. The limits on the exercise of jurisdic-

tion are not ‘mechanical or quantitative’ (International

Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct.

154, 159, 90 L. Md. 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 circum-

stances. * * *.’’? Nelson at 383-4, 143 N.E.2d at 676.

(Emphasis added.)

The Nelson court also quoted from International Shoe:

cece * * [TD]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

App. 21

‘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 con-

nection.’ (326 U.S. at page 317, 66 S.Ct. [154] at

page 158.)’’ Nelson at 385, 143 N.H.2d at 677.

The Nelson court determined the intent of the legislature:

‘‘Sections 16 and 17 of the Civil Practice Act re-

flect 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 Tll.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 de-

fendants, 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 Tli-

nois. 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 com-

mented 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 E.Ld. 95, 102), and

App. 22

second, whether there has been a reasonable method

of notification. (See International Shoe Co. v. Wash-

ington, 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.)

[4] 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 jus-

tice; 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 Nel-

son and in Gray that the intent of the legislature was that

section 17 of the Civil Practice Act reflected a conscious pur-

pose to assert jurisdiction over nonresident defendants

to the extent permitted by due process. In Nelson the court

said that the word ‘‘tortious’’ can be used to describe con-

duct that subjects the actor to tort liability and for that

purpose the Restatement so uses it. (Restatement Torts

section 6.) ‘‘It does not follow, however, that the word

must have that meaning in a statute that is concerned with

jurisdictional limits.’’ (Nelson, 11 Ill.2d at 392, 143 N.E.2d

at 680.) In Pomdexter vy. Willis (1967), 87 Ill.App.2d 213,

217-18, 231 N.E.2d 1, 3, the court in finding jurisdiction over

the nonresident defendant said that the word ‘‘tortious”’

when used under section 17(1)(b), ‘‘* * * is not restricted

to the technical definition of a tort, but includes any act

committed in this State which involves a breach of duty to

another and makes the one committing the act liable to re-

spondent in damages.’’ In United States Dental Institute

v. American Association of Orthodontists (N.D.111.1975),

396 F.Supp. 565, 571, the court in finding jurisdiction in

an anti-trust case made the same statement.

[5,6] 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

App. 23

an actionable wrong, requires a duty, a breach of the duty

and an injury. (J/ieher vy. Brown (1978), 54 Ill.2d 539, 531,

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 manu-

factured. That condition persisted until it became a cause

of action with the crash in Canada causing the deaths. Be-

tween the manufacture and the crash the allegedly defec-

tive 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’’. (Nelson, 11 IIL.

2d at 384, 143 N.E.2d at 676.) The concept that a party

commits himself to this court’s jurisdiction by a single act

is not unusual. The court has sustained jurisdiction under

17(1)(a) in Ward v. Formex Inc. (1975), 27 Ill. App.3d

22, 325 N.E.2d 812; First Professional Leasing Co. v.

Rappold (1974), 23 Ill.App.3d 420, 319 N.E.2d 324; Colony

Press, Inc. v. Fleeman (1974), 17 Ill. App.3d 14, 308 N.E.

2d 78 and Cook Associates, Inc. vy. Colonial Broach & Ma-

chine Co. (1973), 14 Ill.App.3d 965, 304 N.E.2d 27. The

word ‘‘tortious’’ considering the history of the word in its

context in the Civil Practice Act should include the de-

livery of the allegedly defective plane.

[7,8] The determination that ‘‘tortious’’ includes the

delivery of the plane does not conclude the issue of juris-

diction. Thus far, due process requirements have been

used.to analyze the word ‘‘tortious’’. Now the facts al-

leged in the complaint must be considered to determine if

the allegations measure up to the constitutional demands

of due process. Due process requires minimum contacts.

Not all tortious acts necessarily satisfy minimum contacts.

In McBreen vy. Beech (7th Cir. 1976), 543 F.2d 26 the court

found that the tort of libel was committed by the defendant

in Illinois but the defendant did not have the minimum

contacts with Illinois and consequently there was no ju-

App. 24

risdiction. I believe that in the case at bar there were mini-

mum contacts to satisfy due process. The relationship

between the parties that concerns us here is the allegedly

defective plane and the damages to the plaintiffs. The

situs of the crash which caused the death is wholly fortui-

tous and is an insignificant factor in the relationship of

these parties to the lawsuit. The significant factors are the

manufacturing of the allegedly defective plane and the con-

tact that the plaintiffs and their decedents had with the

plane. The manufacturing took place in Kansas. The

most significant relationship between the decedents and the

plane was centered here in Illinois where the plane was

based and where the decedents boarded the plane and

started their trip to England. The pecuniary loss result-

ing from the loss of income and moral training and super-

intendence of education occurred here in Illinois. (See Tli-

nois Pattern Jury Instructions (Civil) 2d 31.04.)

[9,10] It is not offensive to ‘‘traditional notions of

fair play and substantial justice’’ to say to the manufac-

turer of a transient product such as an airplane that it

must defend the lawsuit in a reasonably foreseeable place.

Indeed, in Gray, 22 Ill.2d at 442, 176 N.E.2d 761, the court

noted that it was not unjust to hold a corporation answer-

able to a suit in another State where it elects to sell its

product for ultimate use in that State. In the case at bar

the ultimate use of the product was in Illinois as well as in

a number of other places. In considering the reasonable-

ness of requiring the corporation to defend the suit away

from its principle place of business it is proper for the court

to ‘estimate the inconveniences.’’ The inconveniences in

trying this case in the Northwest Territories of Canada

where all the parties are residents of midwestern states is

rather obvious. As between the residence of the defendant

in Kansas and the plaintiff in Illinois the case is compara-

ble to Gray where the court found jurisdiction in Tlinois.

The Restatement of the Law, Second, Conflicts of Laws,

section 37 provides:

‘‘A State has power to exercise judicial jurisdiction

over an individual who causes effects in the State by

App. 25

an act done elsewhere with respect to any cause of ac-

tion arising from these effects unless the nature of

the effects and of the individual’s relationship to the

State make the exercise of such jurisdiction unreason-

able.’’

The rationale given is that a State has a natural interest in

the effects of an act within its territory and may exercise

jurisdiction provided that the nature of the effects and the

defendant’s relationship were such to make the exercise

fair and reasonable. An example is given of a defendant

who explodes dynamite close to the border of the plaintiff’s

State where the plaintiff is injured. The example suggests

that even without any other relationship the defendant

would be subject to jurisdiction in the plaintiff’s State.

Similarly, in the case at bar, the plaintiffs are Illinois

residents and they have suffered injuries as a result of

an occurrence that took place outside of the State of

Illinois. The rationale given in the example in the Re-

statement is that the effects could have been antici-

pated and were highly dangerous to persons. The effects

that could be caused by a defective plane are equally to be

anticipated. In addition, there were substantial contacts

between Bush and the plaintiffs prior to the crash as pre-

viously mentioned which makes the exercise of jurisdic-

tion by the State of Illinois fair and reasonable in the cir-

cumstances. (Nelson, 11 Tll.2d at 384, 143 N.E.2d 673.) (Also

see to the same effect Nev.Rev.Stat. tit. 2, ch. 14, see.

14.080.)

For these reasons I wou!d affirm the order of’ the trial

court.

Affirmed.

STAMOS, J., specially concurring.

DOWNING, P. J., dissenting.

App. 26

STAMOS, Justice, specially concurring:

I would also affirm the order of the trial court denying

the motion of defendant, Beech Aircraft Corp. (hereinafter

‘*Beech’’), to quash service of process and to dismiss the

complaint for lack of jurisdiction. However, in my estima-

tion, defendant is amenable to service of process in Illinois

by virtue of its contractual relationship with its distributor,

Hartzog Aviation Co. (hereinafter ‘‘ Hartzog’’).

Section 13.3 of the Civil Practice Act (Ill.Rev.Stat. 1973,

ch. 110 par. 13.3) provides for service on a corporation as

follows:

‘*A private corporation may be served (1) by leav-

ing a copy of the process with its registered agent or

any officer or agent of said corporation found any-

where 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.’’

Section 16(1) of the Civil Practice Act (Ill. Rev.Stat.

1973, ch. 110, par. 16(1)) provides in part as follows:

‘*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 sub-

mitted to the jurisdiction of the courts of this State,

it shall have the force and effect of personal service

of summons within this State; * * *.’’

Plaintiff concedes that Beech has no registered agent in

the State of Illinois, and does not suggest that the director-

ates of Beech and Hartzog are interlocking. The issue

before this court, therefore, is whether the office of Hartzog

is agent in fact for service of process upon Beech.

Section 16 of the Civil Practice Act reflects a conscious

legislative purpose to assert jurisdiction over non-resident

defendants to the extent permitted by the due process

clause. (Nelson v. Miller (1957), 11 Ill.2d 378, 389, 143 N.E.

2d 673, 679.) Within this context, modern constitutional

App. 27

principles governing the exercise of personal jurisdiction

over a foreign corporation were enunciated by the United

States Supreme Court in /niernational Shoe Co. v. Washing-

ton (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. In Jn-

ternational Shoe, the Court noted that continuous and sys-

tematic corporate operations may establish ‘‘sufficient con-

tacts or ties with the state of the forum to make it reason-

able and just according to our traditional conception of

fair play and substantial justice to permit the state to en-

force the obligation’’ incurred there. 326 U.S. at 320, 66

S.Ct. at 160.

Where the business done by a foreign corporation in the

state of the forum is of a sufficiently substantial nature, it

has been held permissible for the state to entertain a suit

against such corporation even though the cause of action

arose from activities entirely distinct from its conduct

within the state. (Gray v. American Radiator and Sanitary

Corp. (1961), 22 Ill.2d 482, 176 N.E.2d 761.) Similarly,

where the facts indicate that one corporation so controls

the affairs of another corporation that the two entities

are essentially one, the court will disregard the corporate

entities and hold service of process on one corporation

effective as to the other. See Rymal v. Ulbeco (1975), 33

Ill. App.3d 799, 338 N.E.2d 209.

Application of these principles to the case at bar pre-

sents two questions for analysis:

(1) Whether the activities of Hartzog, defendant’s dis-

tributor, are chargeable to defendant; and

(2) Whether such activities are sufficiently pervasive to

justify the exercise of jurisdiction in Illinois over a

cause of action not directly related to these activities,

In my estimation, there can be little question but that the

activities of Hartzog, defendant’s distributor, are attribut-

able to defendant foreign corporation. The amount of con-

trol which Beech was capable of exercising is apparent

from consideration of several determinative factors. These

salient factors appear in the contract between Beech and

App. 28

Hartzog. Implementation of this contract is outlined in

the deposition of Karl Berg, a marketing manager em-

ployed by Beech Aircraft.

The distributorship arrangement between Beech and ©

Hartzog indicates that Beech enjoyed extensive control

over its products in the State of Illinois and considerable

supervision over its distributor. For example:

a. Hartzog is required to submit purchase orders for

all airplanes ordered by Hartzog under the agree-

ment and all such purchase orders are subject to -

approval and acceptance by Beechcraft at its prin-

cipal place of business;

b. Hartzog is permitted to sell Beechcraft airplanes

within a given area of the State of Illinois;

ce. Hartzog is required to devote its full sales efforts to

the sales of such aircraft;

d. Hartzog is required to price the aircraft it sells;

Hartzog is required to maintain sales control records

and advertise Beechcraft airplanes exclusively and

completely in accord with the directives and policies

of Beechcraft;

f. Hartzog is required to perform all warranty, main-

tenance and repair service on all Beechcraft air-

planes covered by warranty provisions of purchase

which aircraft were in Hartzog’s area of responsi-

bility during their warranty period and regardless

of whether or not they were airplanes sold by Hart-

Z08 ;

g. Hartzog agreed to provide any and all facilities at

its place of business which were necessary by Beech-

craft to distribute and sell Beechcraft products;

b. Hartzog could not move its place of business without

obtaining the prior written consent of Beech. In ad-

dition, Beechcraft through its officers and employees

could enter Hartzog’s sales area to make marketing

App. 29

surveys or gather any other information Beech may

desire and to call upon and examine the facilities

and/or personnel of, Hartzog during business hours

and to do anything else which Beech believed neces-

sary and proper for increased sales;

i. Beech could inspect the complete operation of Hart-

zog from time to time including the business facili-

ties, records, supplies and personnel;

j. Beechcraft. trademark was allowed to be used by

Hartzog;

k. Under certain conditions, Beechcraft could termi-

nate the sales agreement without any advance notice.

Moreover, the testimony of Karl Berg describes the oc-

casional but direct intervention of the Beech Aircraft Corp.

into the Illinois market and further establishes defendant’s

voluntary invocation of the benefits of the State of Llinois.

(Muffo v. Forsyth (1976), 37 Ill. App.3d 6, 345 N.E.2d 149.)

Berg’s testimony has been abstracted as follows:

‘*. |. With regard to business activities in Illinois,

Berg testified among other things as follows: That he

was employed directly by Beech Aircraft Corporation

in Wichita, Kansas, and had been for nine years and

that this present position as of December 12, 1974 was

that of marketing manager for reciprocating aircraft.

That he had held previous sales managerial positions

for the prior six to eight years. As a consequence of his

managerial duties, Mr. Berg testified that on one occa-

sion, he visited Hartzog Aviation with the express

purpose of promoting the sale of Beech aircraft known

as a ‘Duke’ model to a prospective customer of Hart-

zog. That he himself was actually involved in the pro-

motion of the aircraft to the sales prospect, including

coming into personal contact with the prospect. That

be engaged in flying the Beechcraft airplane Hartzog

desired to sell to the prospect. No sale was consum-

mated as a result of this visit. Mr. Berg testified that

he had visited Hartzog Aviation probably a dozen times

App. 30

within his nine years at Beech. In addition, Mr. Berg

testified that in the spring of 1974, Beechcraft, in con-

junction with Hartzog, sponsored a sales program in

Illinois called ‘An Evening with Beechcraft’ in which

four of the Wichita based employees came into Illinois

and put on a film and slide presentation and hosted a

dinner for sales prospects in Illinois. There were ap-

proximately 60 prospects who attended that dinner.

No sales were consummated at that time.’’

Such evidence overwhelmingly demonstrates a series of

corporate operations by Beech Aircraft, both directly and

through its distributor, sufficient to establish its presence

in the State of Illinois within the context of International

Shoe. I note that similar results have obtained in various

other jurisdictions which have had occasion to consider dis-

tributor contracts akin to that involved in the instant case.

Szantay v. Beech Aircraft Corp, (D.C.E.D.S.C., 1965), 237

F.Supp. 393, aff’d, 349 F.2d 60 (C.A. 4, 1965); Dunn vy.

Beech Aircraft Corp. (D.C.E.D.Pa., 1967), 276 F.Supp. 91;

see also, Scalise v. Beech Aircraft Corp. (D.C.E.D.Pa.,

1967), 276 F.Supp. 58; Delray Beach Aviation Corp. v.

Mooney Aircraft Inc., (C.A. 5, 1964), 332 F.2d 135.

Nor can it be doubted that these activities are sufficiently

pervasive to justify the exercise of jurisdiction over a

cause not directly related to such activities. The annual

volume of business conducted by Hartzog does not appear

of record, However, it is not disputed that the day to day

sales and service of Beech Aircraft conducted by an ap-

parently solvent firm, such as Hartzog Aviation, consti-

tutes activity which may be fairly categorized as a sub-

stantial and systematic business operation. As previously

noted, within this context, Beech controls Hartzog’s sales

and service policies, facilities, public relations, accounts and

records, and marketing practices. This activity leaves

small doubt that Beech has intentionally entered the Illinois

market and is actively doing business in this state. Rather

than use its own directly employed personnel, the corpora-

tion chose to enter into the state by acquiring broad su-

App. 31

pervisory control over a distributor-sales-corporation. The

nature of this broad control and the extent to which it was

exercised is an adequate basis for finding Hartzog to be

the agent of Beech and, thus, the proper and capable re-

cipient of service of process upon Beech.

Defendant’s reliance upon the case of Aanestad v. Beech

Aircraft Corp. (C.A. 9, 1974), 521 F.2d 1298, is not con-

trolling. In Aanestad, with respect to a distributorship

arrangement similar to that at issue in the case at bar, the

court held that the activities of Beech through its subsidi-

ary were not sufficiently pervasive to justify jurisdiction in

California of a cause of action unrelated to such activities.

It does not appear that evidence similar to the Berg deposi-

tion was considered by the court in determination of that

appeal and the court expressly refrained from ruling on

the question of whether the activities of a subsidiary may

subject the parent corporation to jurisdiction in the state

in which the subsidiary is incorporated or doing business.

Similarly, the case of Cannon Mfg. Co. v. Cudahy, ete.,

Co. (1925), 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634, is in-

applicable to the facts of the instant case. That case held

only that the mere presence of an independent, albeit

wholly-owned, subsidiary may not be equated with the

presence of the parent for purposes of establishing that

the parent was ‘‘doing business”’ in the forum jurisdiction

in order to justify the exercise of jurisdiction over the

parent. In the case sub judice, the activities of Hartzog

and Beech appear to have been joint. The broad control

exercised over the distributor and the direct intercession of

Beech employees in Illinois serves to distinguish the ra-

tionale of Cannon from that of the case at bar and estab-

lishes the ‘‘minimum contacts’’ requisite to the exercise of

in personam jurisdiction under International Shoe.

In my opinion, the order of the trial court denying de-

fendant Beech’s motion to quash service of process and to

dismiss the cause for lack of jurisdiction was proper and

for the aforementioned reasons should be affirmed.

App. 32

DOWNING, Presiding Justice, dissenting:

For the following reasons I would reverse the circuit

court of Cook County.

Plaintiffs in their brief in this court, in substance, as-

serted they would demonstrate that jurisdiction properly

attaches in Illinois either (a) when defendant is ‘‘present’’

and ‘‘doing business’’ in Lllinois, or (b) when defendant

Beech committed a tortious act within this state (Ill.Rev.

Stat. 1971, ch. 110, par. 17(1)(b)); 7. e., *‘defendant’s negli-

gent causation of pecuniary loss to Illinois resident sur-

vivors 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 Rock-

ford, Illinois ever sold or had any connection with the sale

of his 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.

App. 33

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(1)(b) to be-

lieve 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 resi-

dent 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:

(b) The commission of a tortious act within this

state ;

» * *

(3) Only causes of action arising from acts enu-

merated herein may be asserted against a defendant

in an action in which jurisdiction over him is based

upon this Section.’’

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 de-

livery 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 lia-

bility of Beech as the airplane manufacturer. Because the

plane, at least five years after its manufacture in Kansas,

App. 34

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 Micher v. Brown (1973), 54 Ill.2d

539, 541, 301 N.E.2d 307, a case involving an auto-truck

accident in Illinois, the supreme court concerned itself with

the question of common law negligence. In so doing, ii dis-

cussed a duty owed by the truck manufacturer to the dece-

dent. In discussing the issues of duty to examine reason-

able 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 circum-

stances a steady prop upon which to base jurisdiction.

It is said that the word ‘ ‘tortious’ * * 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, 66 S.Ct. 154, 90 L.Ed. 95; 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’ did not involve a tortious act. It

held that ‘a Delaware corporation employing shoe sales-

men in the state of Washington rendered itself amenable

to proceedings in Washington to recover unpaid contribu-

tions to the state unemployment compensation fund.

’ For a recent discussion of a state court’s exercise of in rem or

quasi-in rem jurisdiction and the “minimum contact” test of Inter-

national Shoe, see Shaffer v. Heitner, ........ USS. ........, 97 S.Ct. 2569,

53 L.Ed.2d 683 (1977).

App. 35

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 plain-

tiff in Illinois. The factual background is as different

from the instant case as day is from night. Thus, in dis-

cussing 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

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.’’ (Kmphasis add-

ed.) (11 Ill.2d at 393, 143 N.H.2d at 681.)

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(1)(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 manu-

facture. 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 add-

ed.) (22 Ill.2d at 435, 176 N.E.2d at 762.)

In the instant case the consequences, and the last event

necessary to render Beech possibly liable, occurred in Cana-

da. The consequences and last event in both Nelson and

Gray clearly took place in Illinois. To suggest that the

App. 36

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 con-

tacts of Beech to Illinois in this case? It is suggested that

because the plane was centered in Illinois when the de-

cedents boarded the plane and started their trip to England,

there is sufficient minimum contact to meet due process re-

quirements. 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 con-

tact the decedents had with the plane occurred in the fatal

trip. As was said in McBreen vy. 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 jurisdic-

tion.’’ 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 be-

lieve the minimum contact standard elucidated in Inter-

national Shoe is violated.

It is suggested that Beech caused the effects in the state

of Illinois, and the effects could have been anticipated. What

effects? 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 resi-

dents are, to be protected regardless of due process con-

straints. I do not find any tortious act in Illinois. To

hold that there is such a tortious act, in my opinion, clear-

ly 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 sys-

tematic 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

App. 37

distributor Hartzog. Section 13.3 of the Civil Practice

Act provides the nexus between non-resident 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 busi-

ness 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 con-

cluded that Beech is present within the state of Illinois

within the context of International Shoe. Again I dis-

agree 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 em-

ployed and resided in the state of Washington; their prin-

cipal activities were confined to that state; and they were

compensated based upon the amount of the sales in the

state of Washington. A dispute arose over whether their

out-of-state employer was required to pay to a state un-

employment compensation fund. No one could really argue

that there were sufficient contacts or ties to make it reason-

able and just to enforce such obligations against the out-

of-state employer. Those contacts did not offend the tra-

ditional notions of fair play and substantial justice.

But, so far as this record shows, there can be no compari-

son between the activities of Beech or Hartzog in Illinois

and the activities of the shoe salesmen in the state of Wash-

ington. As said in International Shoe, ‘‘[w]hether 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. at 319, 66 S.Ct. at

160.) 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), Til, 6 Tl.

App. 38

Nishi s Aaclead N.E.2d__........ , Our supreme court dis-

cussed this phrase as it is used in the context of the venue

statute. In doing so it distinguished the pharse as it is used -

in a jurisdictional context. It is significant to note the fol-

lowing 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.’ 6 Ill.Dee. p. ........ si nite N.E.2d p. .......-.

So now we must look at just what facts are involved in

this case. Beech had a sales agreement with Hartsog

whereby the latter was franchised to sell and se1vice Beech

airplanes in 19 counties of Illinois.? 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 agree-

ment 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

*In addition to the 19 of 102 counties in Illinois, the agreement

provided Hartzog was franchised in certain counties in Indiana,

Michigan, and Wisconsin.

App. 39

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 ap-

pointed 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 Inter-

national 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 sys-

tematic course of business. More contacts are required

than sales and sales promotion within the state of Illinois

by independent nonexclusive sales representatives. Hough-

ton v. Piper Aircraft Corp. (1975), 112 Ariz. 365, 542 P.2d

24, 27; cf. Lindley v, St. Lowis-San Francisco Ry. Co. (7th

Cir. 1968), 407 F.2d 639, 642, 643.

Hartzog is not a party defendant. Neither Beech’s ac-

tivities 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 ac-

tivities 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 Air-

craft Corp. (9th Cir. 1974), 521 F.2d 1298, 1301, cert. demed

(1974), 419 U.S. 998, 95 S.Ct. 318, 42 L.Ed.2d 272.

To hold this state has jurisdiction under the minimal con-

tacts 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 bal-

ance it would appear, that aside from the attorneys, a trial

~

App. 40

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 all of these reasons

I would reverse and remand with directions that the cir-

cuit court of Cook County grant the motion to quash serv-

ice of process and to dismiss for lack of jurisdiction.

App. 41

NO. 62340

IN THE APPELLATE COURT, STATE OF ILLINOIS

FIRST DISTRICT

GALE BRABAND and ELIZABETH FORSYTHE,

Plaintiffs-Appellees,

vs.

BEECH AIRCRAFT CORP., a corp.,

Defendant-Appellant,

and

KOLLSMAN COMPANY, Division of SUN CHEMICAL

CORP., and EAGLE AIRCRAFT SERVICES, LTD.,

Defendants.

ORDER

This cause coming to be heard on the Petition of De-

fendant-Appellant, BEECH AIRCRAFT CORPORA-

TION, To Issue A Certificate of Importance Under Rule

316; due notice having been given and the Court being

fully advised in the premises;

IT IS HEREBY ORDERED that Defendant-Appellant’s

petition is granted and a certificate of importance is hereby

issued to the Illinois Supreme Court.

AFFIRMED

Robert J. Downing

Justice

John J. Stamos

Justice

M. R. Jiganti

Justice

Lorp, Bisset & Brook (H. Grirrim)

Attorney for Defendant-Appellant

115 8. LaSalle St.

Chicago, IL 60603

443-0342

App. 42

OPINION OF ILLINOIS SUPREME COURT

GALE BRABAND et al., Appellees, v. BEECH AIR-

CRAFT CORPORATION et el.—Beech Aircraft Cor-

poration, Appellant.)

Opinion filed Oct. 6, 1978.—lKchearing denied Dec. 1, 1978.

1. JURISDICTION—due process must be satisfied and

a foreign corporation must be present and doing business

in Illinois before it may be subjected to this State’s juris-

diction. Assuming that due process is satisfied, the asser-

tion of Illinois jurisdiction over a foreign corporation has

traditionally required a finding that it is present and doing

business within this jurisdiction. (Pp. 554-55.)

2. JURISDICTION—-whether the activities of a foreign

corporation may subject it to the jurisdiction of a State

should be determined on the facts of each case. The

amount and kind of activities which must be carried on by

a foreign corporation in a State to make it reasonable and

just to subject the corporation to that State’s jurisdiction

should be determined in each case. (P. 556.)

3. JURISDICTION—thether to assert jurisdiction

over a foreign corporation is a choice left to the State once

due process is satisfied. Assuming that due process is satis-

fied, the decision whether to take or decline jurisdiction

over a foreign corporation is left to the legislature and

the courts of the State. (P. 556.)

4, JURISDICTION—the principles of jurisdiction re-

flect the State’s interest in providing redress to those with-

in the ambit of its legitimate protective policy. The founda-

tions 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. (Pp. 556-57.)

5. JURISDICTION—jurisdictional provisions must be

fair and reasonable and give a defendant adequate notice

and an opportunity to defend. Jurisdictional provisions

must be fair and reasonable in the circumstances and must

give a defendant adequate notice of the claim against him

App. 43

and an adequate and realistic opportunity to appear and

be heard in his defense. (P. 557.)

6. JURISDICTION—the Civil Practice Act attempts to

assert jurisdiction over foreign defendants to the extent

permitted by the due process clause. Sections 16 and 17

of the Civil Practice Act (Ill. Rev. Stat. 1971 ch. 110, pars.

16, 17) reflect a conscious purpose to assert jurisdiction

over nonresident defendants to the extent permitted by the

due process clause. (P. 557.)

7. JURISDICTION—jurisdiction over a foreign cor-

poration depends upon the type of in-State activity and

whether it is reasonable to require the defendant to defend

the suit in this State. Whether a foreign corporation may

be subjected to jurisdiction in Illinois is dependent upon

the quality and nature of the activity in which the defen-

dant is engaged and whether it is reasonable to require

the defendant to defend the particular suit which is brought

in this State. (P. 558.)

8 JURISDICTION—when a _ foreign-corporate ar-

plane manufacturer’s sales and promotional activities with-

in Illinois are sufficient to subject it to Illinois jurisdiction

concerning a suit arising over a crash of its used plane im

Canada. An airplane manufacturer that is a corporation

not licensed to do business in the State of Illinois may, con-

sistent with due process, be considered present and doing

business in this State and amenable to service of process

under sections 13.3 and 16 of the Civil Practice Act (Til.

Rev. Stat. 1971, ch. 110, pars. 13.3, 16) where recovery is

sought for the death of two Illinois residents, whose used

plane manufactured by the defendant crashes in Canada on

a flight originating in Illinois, and the defendant has had

extensive contacts with an independent corporate dis-

tributor in Illinois who is permitted to sell its products

and whom it frequently visits in order to promote sales

and with whom it has sponsored a sales program with a

film and slide presentation and dinner for sale prospects,

and where the defendant also has maintained advertise-

ments in the Chicago metropolitan area telephone direc-

tories to advertise and indicate the locations where its

App. 44

products and parts might be purchased, since such facts

show that the defendant has engaged in extensive activity

within the State designed to effect sales to Illinois residents

and that the defendant could reasonably assume that the

airplanes which it manufactured would be owned by resi-

dents of Illinois and might be flown to other states or even

foreign countries. (Pp. 550-60.)

KLUCZYNSKYI, J., took no part.

Appellate citation: 51 Ill. App. 3d 296.

Appeal from the Appellate Court for the First District;

heard in that court on appeal from the Circuit Court of

Cook County, the Hon. Nicholas J. Bua, Judge, presiding.

Lord, Bissell & Brook, of Chicago (Gary W. Westerberg,

Hugh C. Griffin and Richard FE. Mueller, of counsel), for

appellant.

Philip H. Corboy and Associates, of Chicago (Philip H.

Corboy, of counsel), for appellees.

MR. JUSTICE GOLDENHERSH delivered the opinion

of the court:

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 de-

ceased husbands’ estates, brought these consolidated ac-

tions 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 sum-

mons 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 defen-

dant’s application for leave to appeal, affirmed the order

of the circuit court (51 Ill. App. 3d 296), 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 maufactured by de-

App. 45

fendant, crashed as it approached an airport near Frobish-

er Bay, Northwest Territories, Canada, and that the three

pilots on board were killed. Plaintiffs are the adminis-

trators of the estates of James L. Braband and Donald

Forsythe, two of the pilots. The airplane was manu-

factured by defendant in Wichita, Kansas, and in 1966 was

sold by defendant to Tex-Sun Beechcraft, Inc., located in

San Antonio, Texas. In 1968 T’ex-Sun sold it to Mission

Broadcasting Company, located in Reno, Nevada. In 1971,

Mission Broadcasting sold the aircraft to Coleman Air-

craft 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, com-

mitted 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:

‘‘Seec. 13.3. Service on private corpurations. A pri-

vate 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

App. 46

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 nade up-

on any party outside the State. If upon a citizen or

resident of this State or upon a person who has sub-

mitted 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).

‘See. 17. Act submitting to jurisdiction—Process.

(1) Any person, whether or not a citizen or resi-

dent 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 enu-

merated herein may be asserted against a defendant

in an action in which jurisdiction over him is based

upon this Section.

App. 47

(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 altit, ie read-

ings for the airplane when said airplane was airborne

and when the aircraft was being flown in a manner

which was reasonably foreseeable.

e. 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 sepa-

rate 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 com-

mitted a tortious act in Illinois within the contemplation

of section 17 of the Civil Practice Act and that defendant

App. 48

was ‘‘present and doing business in Illinois’? and there-

fore 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, 53 L. Ed. 2d 683, 97 S. Ct. 2569, the

Supreme Court reviewed the pertinent authorities eom-

mencing 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, 90. L. Ed. 95, 66 S. Ct. 154, 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, 90 L. Ed. 95, 102, 66 S. Ct.

154, 158.) In Shaffer, after quoting the foregoing lan-

guage 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 con-

text of our federal system of government, to

require the corporation to defend the particular

suit which is brought there.’ [326 U.S. 310, 317,

90 L. Ed. 95, 102, 66 S. Ct. 154, 158.]

Mechanical or quantitative evaluations of the defen-

dant’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 ac-

tivity in relation to the fair and orderly adminis-

App. 49

tration 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 bind-

ing 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, 90 L. Ed. 95, 104, 66 S. Ct. 154, 160.]’’ 433

U.S. 186, 203-04, 53 L. Ed. 2d 683, 697, 97 S. Ct.

2569, 2580.

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 busi-

ness’’ within this jurisdiction. (See discussion, Baltimore

& Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 327.)

The difficulties encountered in the application of this con-

cept to given factual situations were noted in Shaffer v.

Heitner (1977), 433 U.S. 186, 53 L. Ed. 2d 683, 97 S. Ct.

2569, wherein the Supreme Court said:

‘‘The motorists’ consent theory was easy to ad-

minister since it required only a finding that the

out-of-state driver had used the State’s roads. By

contrast, both the fictions of implied consent to ser-

vice on the part of a foreign corporation and of cor-

porate presence required a finding that the corporation

was ‘doing business’ in the forum State. Defining

the criteria for making that finding and deciding

whether they were met absorbed much judicial energy.

See, e.g., International Shoe Co. v. Washington, 326

U.S., at 317-319. While the essentially quantitative

tests which emerged from these cases purported simply

to identify circumstances under which presence or

consent could be attributed to the corporation, it be-

came clear that they were in fact attempting to as-

certain ‘what dealings make it just to subject a foreign

corporation to local suit’. Hutchinson vy. Chase &

Gilbert, 45 F.2d 139, 141 (CA2 1930) (L. Hand, J.).’’

433 U.S. 186, 203, 53 L. Ed. 2d 683, 697, 97 S. Ct.

2569, 2579.

App. 50

In St. Louis-San Francisco Ry. Co. v. Gitchoff (1977),

68 Ill. 2d 38, the court said:

‘*In the context of our evolving concepts of juris-

dictional requirements, the Supreme Court has ob-

served :

‘«(T}raditional notions of fair play and sub-

stantial justice’’ can be as readily offended by

the perpetuation of ancient forms that are no

longer justified as by the adoption of new pro-

cedures that are inconsistent with the basic values

of our constitutional heritage.’ Shaffer v. Heitner

(1977), 433 U.S. 186, 212, 53 L. Ed. 2d 683, 703,

97 S. Ct. 2569, 2584.’’ 68 Tll. 2d 38, 46.

‘‘The amount and kind of activities which must be ear-

ried on by the foreign corporation in the state of the

forum so as to make it reasonable and just to subject the

corporation to the jurisdiction of that state are to be

determined in each case.’’? (Perkins v. Benguet Consoli-

dated Mining Co. (1952), 342 U.S. 487, 445, 96 L. Ed.

485, 492, 72 S. Ct. 413, 418.) Assuming that upon the

facts shown by the record ‘‘due process is satisfied’’ the

decision whether to take or decline jurisdiction is left to

the General Assembly and the courts of this State. Perkins

v. Benguet Consolidated Mining Co. (1952), 342 U.S. 437,

448, 96 L. Ed. 485, 494, 72 S. Ct. 413, 420.

Sections 16 and 17 of the Civil Practice Act were amended

in 1955 (1955 Tl. Laws 2238, 2245-46), and shortly after

the amendments became effective on January 1, 1956,

their validity was challenged in Nelson v. Miller (1957),

11 Ill. 2d 378. In 1954 the defendant in Nelson, a Wis-

consin resident engaged in the business of selling appli-

ances, had sent one of his employees to deliver appliances

to the plaintiff in Illincis. In the course of that delivery,

as the result of the negligence of defendant’s employee,

the plaintiff was injured. Plaintiff filed suit in 1955 and

made two unsuccessful attempts to serve the defendant

with summons in Illinois. In February 1956, summons

was served personally on the defendant in Wisconsin.

c

——

App. 51

The circuit court allowed the defendant’s motion to quash

the summons, and the plaintiff appealed. In reversing

the order and upholding the service of process on the

defendant the court said:

‘‘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 other-

wise 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 (1945),) but are to be found only

in the requirement that the provisions made for this

purpose must be fair and reasonable in the cireum-

stances, and must give to the defendant adequate

notice of the claim against him, and an adequate and

realistic opportunity to appear and be heard in his

defense.’’ (11 Ill. 2d 378, 384.)

The court concluded that ‘‘Sections 16 and 17 of the Civil

Practice Act reflect a conscious purpose to assert jurisdic-

tion over nonresident defendants to the extent permitted

by the due-process clause.’’ 11 Ill. 2d 378, 389.

From the agreed statement of facts it does not appear

that plaintiffs’ causes of action arose from any act of

defendant’s distributor Hartzog, or that the relationship

between Hartzog and defendant was in any manner con-

nected with the occurrence in which plaintiffs’ decedents

were killed; nor does it appear that plaintiffs’ causes of

action arose from ‘‘the transaction of any business within

this State’’ (Ill. Rev. Stat. 1971, ch. 110, par. 17(1)(a)).

Relying principally upon Cannon Manufacturing Co. v.

Cudahy Packing Co. (1925), 267 U.S. 333, 69 L. Ed. 634,

45 S. Ct. 250, and its progeny, defendant argues that Mr.

Justice Stamos, specially concurring in the appellate

court’s affirmance of the circuit court’s order, erroneously

concluded that by reason of its contractual relationship

with ifs distributor, Hartzog, defendant was ‘‘present and

doing business’’ in Illinois. We note that Cannon was

App. 52

decided more than 20 years prior to the decision in Inter-

national Shoe Co. and did not purport to decide any

question other than whether conducting business through

a wholly owned subsidiary rendered the parent corporation

amenable to process in the State where the subsidiary did

business. The Supreme Court stated that:

‘‘The obstacle insisted upon is that the court lacked

jurisdiction because the defendant, a foreign corpo-

ration, was not within the State. No question of the

constitutional powers of the State, or of the federal

Government, is directly presented. The claim that

jurisdiction exists is not rested upon the provisions

of any state statute or upon any local practice deal.

ing with the subject. The resistance to the assump-

tion of jurisdiction is not urged on the ground that

to subject the defendant to suit in North Carolina

would be an illegal interference with interstate com-

merece. Compare International Harvester Co. v. Ken-

tucky, 234 U.S. 579, 587-89. The question is simply

whether the corporate separation carefully maintained

must be ignored in determining the existence of juris-

diction.’’ (267 U.S. 333, 336, 69 L. Ed. 634, 642, 45

S. Ct. 250, 251.)

In our opinion the agreed statement of facts shows that

defendant engaged in activities in Illinois in addition to

those conducted by Hartzog, and we need not, therefore,

decide whether Hartzog’s activities standing alone would

serve as a sufficient basis to assert jurisdiction.

As required by International Shoe and Shaffer, we con-

sider ‘‘the quality and nature of the activity’’ in which de-

fendant was engaged and whether it is reasonable to re-

quire defendant ‘‘to defend the particular suit which is

brought [here].’’ (International Shoe Co. v. Washington

(1945), 326 U.S. 310, 317, 319, 90 L. Ed. 95, 102, 104, 66

S. Ct. 154, 158, 160.) These actions are brought by Illinois

residents to recover for the wrongful deaths of Illinois

residents during a flight which originated in Illinois and

are clearly ‘‘within the ambit of the State’s legitimate pro-

tective policy.’’ (Nelson v. Miller, 11 Ill. 2d 378, 384.) The

App. 53

agreed statement of facts shows that defendant and Hart-

zog are parties to a written agreement under the terms of

which Hartzog is permitted to sell defendant’s products

within a given area of the State of Illinois and which, inter

alia, requires it to perform all warranty, maintenance and

repair service on all Beechcraft planes covered by warranty

provisions regardless of whether they were sold by Hart-

zog. Further, defendant was empowered to inspect Hart-

zog’s complete operation from time to time, including its

business facilities, records, supplies and personnel, and

could, under certain conditions, without advance notice,

terminate the sales agreement. It also appears that de-

fendant’s marketing manager frequently visited Hartzog

with the express purpose of promoting the sales of de-

fendant’s aircraft; that defendant, together with Hartzog,

had sponsored a sales program in Illinois which included a

film and slide presentation and a dinner for sales pros-

pects in Illinois; and that, for a period of at least five

years, advertisements had appeared in the Chicago Metro-

politan Area telephone directories to advertise and indi-

cate the presence of locations where defendant’s products

and parts could be purchased. In view of defendant’s ac-

tivities within Illinois designed to effect sales to residents

of Illinois, defendant could reasonably assume that air-

planes which it manufactured would be owned by residents

of Illinois and in view of the high degree of mobility pe-

culiar to its products could further assume that they would

be flown both within Illinois and into other States, or, as.

in this instance, to other countries. We hold, therefore,

that as reflected by the agreed statement of facts, defen-

dant’s activities show sufficient contacts with this State so

that requiring it to defend this action does not offend ‘‘tra-

ditional motions of fair play and substantial justice.’’

We hold further that these activities show defendant to

be present and doing business in Illinois and amenable to

service of process under sections 13.3 and 16 of the Civil

Practice Act. St. Louis-San Francisco Ry. Co. v. Gitchoff

(1977), 68 Ill. 2d 38, 43.

App. 54

In view of our holding we do not consider plaintiffs’ con-

tention that defendant committed a tortious act within the

contemplation of section 17(1)(b) of the Civil Practice

Act.

For the reasons herein stated the judgment of the appel-

late court is affirmed.

Judgment affirmed.

MR. JUSTICE KLUCZYNSKI took no part in the con-

sideration or decision of this case.

“- —

App. 55

ILLINOIS SUPREME COURT

CLELL L. WOODS, Clerk

Supreme Court Building

Springfield, Ill. 62706

(217) 782-2035

December 1, 1978

Lord, Bissell & Brook

Attorneys at Law

115 S. LaSalle Street

32nd Floor

Chicago, Ill. 60603

No. 49954 — Gale Braband, et al., appellees, vs. Beech Air-

craft Corp., a corp., appellant. Appeal, Ap-

pellate Court, First District.

The Supreme Court today denied the petition for re-

hearing in the above entitled cause. Mr. Justice Kluczyn-

ski took no part.

Very truly yours,

Clell L. Woods

Clerk of the Supreme Court