Vandermee v. District Court In and For Arapahoe County, in Eighteenth Judicial Dist.

• Decision Date: 06 November 1967
• Docket Number: No. 23140,23140
• Citation: 433 P.2d 335,164 Colo. 117
• Parties: Paul VANDERMEE, Petitioner, v. The DISTRICT COURT IN AND FOR the COUNTY OF ARAPAHOE, IN the EIGHTEENTH JUDICIAL DISTRICT, and the Honorable Donald P. Smith, Jr., one of the Judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 335

433 P.2d 335

164 Colo. 117

Paul VANDERMEE, Petitioner, v. The DISTRICT COURT IN AND FOR the COUNTY OF ARAPAHOE, IN the

EIGHTEENTH JUDICIAL DISTRICT, and the Honorable

Donald P. Smith, Jr., one of the Judges

thereof, Respondents.

No. 23140.

Supreme Court of Colorado, En Banc.

Nov. 6, 1967.

Wilson, Boltz & Boyens, Denver, for petitioner.

Yegge, Hall, Treece & Evans, Denver, for respondents.

HODGES, Justice.

This is an original proceeding.

On Vandermee's petition, the respondents were directed to show cause why their order quashing service made in the State of Delaware on Pettibone Mulliken Corporation, a Delaware corporation, should not be vacated. Briefs in support of the respondents' order quashing this service, and in support of the petition have now been filed.

The sole issue involved is whether 1965 Perm.Supp., C.R.S.1963, 37--1--26 (long arm statute) may lawfully be applied so as to obtain jurisdiction over a non-resident corporation which designs and manufactures an instrumentality outside the State of Colorado, and which instrumentality because of its defective design causes injury to a Colorado resident in the State of Colorado.

The petitioner, Paul Vandermee, a carpenter on a construction site in Arapahoe County, Colorado, was seriously injured when a boom of a crane slipped loose. The crane was furnished on the job and operated by Frohlick Crane Service, Inc., a Colorado corporation, but was the product of Pettibone Mulliken Corporation, a Delaware corporation, which designed and manufactured the crane in the State of New York.

In his amended complaint, the Petitioner alleged negligence on the part of Frohlick and Pettibone. Specifically, it was alleged that Pettibone did negligently and carelessly design the crane which it sold to Frohlick.

Service of process was made on Pettibone in the County of New Castle, State of Delaware, and thereafter a motion to quash this service was filed and heard. The motion was granted by the district court which interpreted the applicable statute and concluded:

'* * * not only must the injury complained of have occurred in the State of Colorado but the alleged negligence or negligent acts must also have occurred within this state.'

The statutory provisions we are concerned with are 1965 Perm.Supp., C.R.S.1963, 37--1--26 and 37--1--27, the pertinent portions of which are as follows:

'37--1--26. Jurisdiction of courts.--(1) (a) Engaging in any act enumerated in this section by any person, whether or not a resident of the state of Colorado, either in person or by an agent, submits such person, and, if a natural person his personal representative, to the jurisdiction of the courts of this state, concerning any cause of action arising from:

(c) The commission of a tortious act within this state;

37--1--27. Service of process.--(1) Service of process upon any person subject to the jurisdiction of the courts of Colorado may be made by personally serving the summons upon the defendant outside this state, in the manner prescribed by the Colorado rules of civil procedure, with the same force and effect as if the summons had been personally served within this state.'

We will refer to these provisions of our law as the 'long arm statute.'

In enacting the long arm statute in 1965, our legislature adopted the same phrase 'The commission of a tortious act within this State' as used in the Illinois statute (S.H.A. ch. 110 § 17(1)(b)) and otherwise substantially adopted the wording of the Illinois statute.

Some four years prior to the enactment of our long arm statute, the Supreme Court of Illinois in Gray v. American Radiator & Standard Sanitary Corporation, 22 Ill.2d 432, 176 N.E.2d 761, interpreted the phrase '(t)he commission of a tortious act within this State' in a case where the facts are essentially the same as involved here. An Illinois resident in Illinois sustained injuries when a water heater exploded. The safety valve was manufactured by a foreign corporation in Ohio, was installed in a water heater in Pennsylvania, and sold to a consumer in Illinois. It was held that the foreign corporation was subject to the jurisdiction of the Illinois court upon service of summons in Ohio on the registered agent of the foreign corporation.

Colorado is known to have adopted into its realm of statutory law provisions from the Illinois statutes, and consequently when the occasion arises, our court frequently gives prime consideration to Illinois precedent when necessary to interpret such a statutory provision. Illinois precedent becomes even more influential when our legislature sees fit to adopt a provision of law from Illinois when there exists at the time of enactment an Illinois decision interpreting identical phraseology as appears in our enactment. In attempting to determine legislative intent, it can be said that strong presumptions exist that our legislature adopted the Illinois provision of law together with the interpretations placed on that provision by the Illinois Supreme Court.

The foregoing rule of construction was recently considered in Hoen v. District Court, 159 Colo. 451, 412 P.2d 428, wherein we reaffirmed a declaration from Hallett v. Alexander, 50 Colo. 37, 114 P. 490, 34 L.R.A., N.S., 328 as follows:

'* * * the General Assembly in adopting substantially an Illinois statute is presumed to have intended that such statute should receive by the courts of this state the same construction given it by the courts of Illinois prior to its adoption in this state.'

In our view the trial court, when it granted the motion to quash service of process in the State of Delaware on Pettibone, interpreted our long arm statute, as it applies to 'tortious act,' constrictively and in a way not intended by our legislature. It would appear obvious that the legislative purpose, which inspired the adoption of the long arm statute, was the expansion of our court's jurisdiction...