delivered the opinion of the court:
Thе issues in this case concern the applicability and the constitutionality of the 1955 amendments to sections 16 and 17 of the Civil Practice Act. (Ill. Rev. Stat. 1955, chap, 110, pars. 16, 17.) As amended, those sections authorize the entry of judgments in personam on personal service of summons outside the State in enumerated classes of cases.
The complaint was filed in April of 1955. It alleged that the defendant, who is a resident of Wisconsin, was engaged in the business of selling appliances; that on June 3, 1954, he sent one of his employees to deliver certain appliances, including а gas cooking stove, to the plaintiff in Pecatonica, Illinois; that at the request of the defendant’s employee the plaintiff assisted in unloading the stove from the truck, and that in the course of this operation defendant’s employee negligently pushed the stove so as to sever one finger on plaintiff’s right hand and injure another. Plaintiff claimed damages in the sum of $7500.
Two attempts to serve summons failed because the defendant was not found. In February of 1956, after the amendments to the Civil Practice Act had become effective, summons was served personally on the defendant in Wisconsin. The defendant appeared specially and moved to quash the summons on the ground that the amended provisions contravene the United States constitution and the constitution of Illinois. The court granted the motion, and plaintiff appeals.
Section 17 is as follows:
“(i)Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits said 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 said acts:
(a) The transaction of any business within this State;
(b) The commission of a tortious act within this State ;
(c) The ownership, use, or possession of any real estate situated in this State;
(d) Contracting to insure any person, property or risk located within this State at the time of contracting.
“(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 aсts enumerated herein may be asserted against a defendant in an action •in which jurisdiction over him is based upon this section.
“ (4) Nothing herein contained limits or affects the right to serve any process in any other manner now or hereafter provided by law.”
The pertinent part of section 16 is as follows:
“(1) Personal service of summons may be made upon any party outside the State. If upon a citizen or resident of this State or upon a person who has submitted to the jurisdiction of the courts of this State, it shall have the force and effect of personal service of summons within this State; otherwise it shall have the force and effect of service by publication.”
We consider first the defendant’s contention that the new provisions of the statute cannot be applied to him because the cause of action arose before the effective date of the provisions authorizing extraterritorial service on nonresident defendants. Insofar as this claim is based on the Federal constitution it is without merit. Sections 16 and 17 do “not extend either to destruction of an existing cause of action or to creation of a new liability for past events.” Cohen v. Beneficial Industrial Loan Corp.
Insofar as the claim is grounded in Illinois law it is fully disposed of by our recent decision in Ogdon v. Gianakos,
As in the Ogdon case, the statute before us contains no saving clause. And, as in that case, the change “merely establishes a new mode of obtaining jurisdiction of the person of the defendant in order to secure existing rights, which are unaffected by this amendment.” Retrospective application of such a statute creates a problem only if that application operates unfairly against a litigant who justifiably acted in reliance on some provision оf the prior law. It is difficult to imagine such a case insofar as section 17(1) (b) is concerned. Only if jurisdiction in a case such as this is regarded as founded on a bargain between the State and the nonresident, whereby consent to be sued here is given as the price of a privilege conferred, can it be thought that the exercise of jurisdiction is unfair because the consent occurred before the terms of the bargain were known. For reasons that will be stated, we are satisfied that jurisdiction does not rest upon such a fictional consent.
Defendant’s main contention is that the amended sections deny him due process of law, and so violate the fourteenth amendment to the constitution of the United States and section 2 of article II of the constitution of Illinois. Since Pennoyer v. Neff,
The change that has occurred is made most manifest by the decision in International Shoe Co. v. Washington,
The question before us is not materially different from that which was settled more than a generation ago with respect to statutes providing for substituted service on nonresident motorists who caused injury within a State. The advent of the automobile and the rapid extension of its use had underscored the problem of the nonresident who enters the State, causes injuries, and withdraws to the relative sanctuary of his residence beyond the State’s borders. In such circumstances the application of old, rigorous concepts of “due process of law” to shield the defendant from the process of the courts оf the State where the accident occurred actually resulted in injustice to the persons injured. In many cases redress for the injury, obtainable only in a foreign court at considerable expense and under substantial handicaps, was a practical impossibility. In the light of this situation, there was no injustice to the nonresident in a requirement that he return, to make his defense, to the place to which he had come voluntarily — to the place in which the injury was inflicted. In the great majority of cases, because of the availability of witnesses, the applicability оf local law, and other factors, that place was the most convenient forum for trial. It was inevitable that State legislatures should be aroused by the social problem thus created, and that they should take steps to make the nonresident motorist amenable to the process of- local courts. It was equally inevitable that the courts would hold that statutes enacted in response to this need were valid exercises of the police power, not in conflict with constitutional guaranties.
It was characteristic of our legal institutions, however, that thе first approaches to a solution of the problem, both in the legislatures and in the courts, were made not in terms of a bold adjustment of legal concepts to a novel social problem, but in terms that purported to fit the new provisions into the established framework of jurisdictional concepts. The development progressed from actual consent to the exercise of jurisdiction by the appointment of an agent to accept service of process, (Kane v. New Jersey,
But it is now clear that the true basis for jurisdiction of the nonresident motorist is something other than consent. In Olberding v. Illinois Central Railroad Co.
The court held that there was no such consent as could1 be seriously treated as a waiver of the venue privilege. It followed that there was no such consent as could furnish a realistic justification for the jurisdiction of the court over the person of the defendant. The basis of jurisdiction was not consent; it was rather that the State was justified in making reasonable provision for redress in local courts against nonresident tortfeasors, so long as it provided reasonable notice and opportunity to be heard. International Shoe Co. v. Washington,
Defendant relies on Flexner v. Farson,
When the problem next reached the Supreme Court, in Henry L. Doherty & Co. v. Goodman,
The social problems resulting from automobile accidents, or as in Doherty from the sale of securities, may be of greater magnitude than those resulting from other tortious conduct generally; but the determination that the degree' of need is such as to call fоr remedy is to be made by the^ legislature and not by the courts. The rational basis of the' decisions upholding the nonresident motorist statutes is broad enough to include the case in which the nonresident defendant causes injury without the intervention of any particular instrumentality. The legislature may direct its policy to the fact of injury as well as to its probability. Cf. Watson v. Employers Liability Assurance Corp.
Z Sections 16 and 17 of the Civil Practice Act reflect )a conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due-process ^clause. (Cleary and Seder, Extended Jurisdictional Bases, 5° N.U.L.R. 599; O’Connor and Goff, Expanded Concepts of State Jurisdiction, 31 N.D. Law 223.) They are not the first provisions to be framed in the light of a pragmatic view of jurisdiction. A Vermont statute (Vt. Stat. (1947) sec. 1562) provides for jurisdiction over any foreign corporation which “makes a contract with a resident of Vermont to be performed in whole or in part by either party in Vermont, or * * * commits a tort in whole or in part in Vermont against a resident of Vermont.” The validity of the statute was upheld in Smyth v. Twin State Improvement Corp.
Even though a sound basis exists for the exercise of jurisdiction in personam, the implementing statute must, of course, provide a mode of service which is reasonably calculated to apprise the defendant of the claim against him. "Sections 16 and 17 provide that service is to be made on the defendant personally. As the joint committee that drafted the amendments stated, “There would seem to be no better notice than a summons personally served on a defendant.” Smith-Hurd, Ill. Ann. Stat., chap, 110, sec. 17, p. 165.
The defendant sent his emplоyee into Illinois in the advancement of his own interests. While he was here, the employee and the defendant enjoyed the benefit and protection of the laws of Illinois, including the right to resort to our courts. In the course of his stay here the employee performed acts that gave rise to an injury. The law of Illinois will govern the substantive rights and duties stemming from the incident. Witnesses, other than the defendant’s employee, are likely to be found here, and not in Wisconsin. In such circumstances, it is not unreasonable to require the defendant to make his defense here. If, in a pаrticular case, trial in an Illinois court will be unduly burdensome to the nonresident defendant, the doctrine of forum non conveniens is available. (Whitney v. Madden,
Defendant’s final contention is that section 17 discriminates against nonresidents and in favor of rеsidents of the State. The argument is based upon the allocation of the burden of proof, and as we understand it the contention is that a resident defendant may put the plaintiff to his proof on the issue of liability, while a nonresident defendant, appearing specially to contest the jurisdiction of the court, must assume the burden of disproving liability in order to defeat jurisdiction.
The argument is founded on the assumption that the issue upon a special appearance to contest jurisdiction under section I7(i)(b) is whether upon the facts the defendant is liable to the рlaintiff as a matter of substantive law. In other words, the assumption is that there is no jurisdiction unless all of the elements that combine to spell.ultimate liability in tort are present. We reject that assumption.
The jurisdictional fact, in the language of section i7(I) (b), is “the commission of a tortious act within this State.” The word “tortious” can, of course, be used to describe conduct that subjects the actor to tort liability. For its own purposes the Restatement so uses it. (Restatement, Torts, § 6.) It does not follow, however, that the word must have that meaning in a statute that is concerned with jurisdictionаl limits. To so hold would be to make the jurisdiction of the court depend upon the outcome of a trial on the merits. There is no indication that the General Assembly intended a result so unusual. The essential question in cases of this type is where the action is to be tried. Once it has been determined that the relationship of the defendant to the State is sufficient to warrant trial here, we are of the opinion that the court has jurisdiction to determine the merits of the controversy, and that its jurisdiction will not be destroyed by its exercise.
The construction assumed by the defendant’s argument would produce anomalous results. It would mean, in the first place, that upon every special appearance the court would be required to conduct a preliminary trial on the merits as to negligence, contributory negligence and all other elements of liability. And if, upon that preliminary hearing the court should find liability for jurisdictional purposes, it would nevertheless be necessary to retry all the issues relating to liability in order to determine the merits of the case, because “No determination of any issue of fact in connection with the objection [to jurisdiction] is a determination of the merits of the case or any aspect thereof.” Civil Practice Act, sec. 20(2); Ill. Rev. Stat. 1955, chap, 110, par. 20.
Moreover, the assumed construction could cast an unfair burden upon defendants under the provisions of section 17(1) (b). A dismissal for want of jurisdiction, after a finding on the preliminary hearing that liability in tort had not been established, might not protect the nonresident defendant from a subsequent suit on the same cause of action in his home State, because under section 20(2) the judgmerit of dismissal will not determine the merits. (Cf. Restatement, Judgments, § 49.) Thus the defеndant who successfully litigated the issue of liability for jurisdictional purposes in our courts might be subjected to a second trial of the issue on the merits in the courts of another State.
Finally, such a construction would materially impair the protection which the General Assembly clearly sought to provide for residents of the State by the enactment of section 17. 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 аnd convenient forum for that purpose. Under the suggested construction, however, the nonresident defendant, merely by defaulting, could force trial of the issue of liability in his own State, under the guise of a trial of the jurisdictional facts. We think that the General Assembly did not intend that the jurisdiction conferred by section 17(1) (b) could be frustrated by a disregarding of the court’s process.
It is unnecessary to interpret section 17(1) (b) as conferring jurisdiction only where the defendant’s conduct in the State gives rise to liability to the plaintiff in tort. A similar question was considered by the Vermont court in Smyth v. Twin Cities Improvement Cоrp.
Since ultimate liability in tort is not a jurisdictional fact under section I7(x)(b), it follows that there is no substance in the contention that the nonresident defendant is discriminated against by the assignment of the burden of proof on that issue. Moreover, to the extent that issues common to the merits and the jurisdictional question may be determined preliminarily by the court for purposes of a motion to quash, the determination will of course not be conclusive on the merits. (Civil Practice Act, sec. 20(2); cf. section 8(3) and Dever v. Bowers,
The argument reduces to the obvious assertion that minor differences in procedure are necessarily involved when a statute undertakes to subject nonresidents to the same obligations that are borne by residents. Of course, jurisdiction must be predicated on different facts, and so the issues open on a motion to quash service of process will necessarily be different. As the Supreme Court said of the statute involved in Hess v. Pawloski: “It makes no hostile discrimination against nonresidents, but tends to put them on the same footing as residents. Literal and precise equality in respect of this matter is not attainable; it is not required.”
Inasmuch as the trial court quashed the service of summons in this case, the judgment is reversed and the cause is remanded to the circuit court of Winnebago County, with directions to deny the motion to quash and for further proceedings in conformity with this opinion.
Reversed and remanded, with directions.