Andersen v. National Presto Industries, Inc.

• Decision Date: 08 June 1965
• Docket Number: No. 51703,51703
• Parties: Dolores ANDERSEN, Appellant, v. NATIONAL PRESTO INDUSTRIES, INC. and Gold Bond Stamp Company of Iowa, Appellees.
• Court: Iowa Supreme Court

Page 639

135 N.W.2d 639

257 Iowa 911

Dolores ANDERSEN, Appellant, v. NATIONAL PRESTO INDUSTRIES, INC. and Gold Bond Stamp Company of Iowa, Appellees.

No. 51703.

Supreme Court of Iowa.

June 8, 1965.

George E. Wright, of Patterson & Lorentzen, Des Moines, for appellant.

H. R. (Randy) Duncan, Jr., of Duncan, Jones, Riley & Davis, Des Moines, for appellees.

THOMPSON, Justice:

This appeal concerns the question of the jurisdiction of state courts over foreign corporations not licensed to do business in the state, and having no registered agent or agents therein. The plaintiff's petition as amended alleged that the defendant National Presto Industries, Inc., is a foreign corporation with its principal place of business at Eau Claire, Wisconsin; that it manufactured a coffeemaker, and marketed it; that the plaintiff obtained one of these devices from a dealer in Des Moines, Polk County, Iowa; that it was so defectively devised and manufactured that the plaintiff was injured while using it. The other defendant, Gold Bond Stamp Company of Iowa, is not involved in this appeal, the action having been dismissed as to it.

It is not disputed that the defendant is a foreign corporation and that it had no registered agent in Iowa upon whom process might be served. In attempting to obtain jurisdiction the plaintiff followed section 617.3, code of 1962, I.C.A., as amended by chapter 325 of the Acts of the 60th General Assembly. So far as pertinent, this section now reads: 'If a foreign corporation makes a contract with a resident of Iowa to be performed in whole or in part by either party in Iowa, or if such foreign corporation commits a tort in whole or in part in Iowa against a resident of Iowa, such acts shall be deemed to be doing business in Iowa by such foreign corporation for the purpose of service of process or original notice on such foreign corporation under this Act, and, if the corporation does not have a registered agent or agents in the State of Iowa, shall be deemed to constitute the appointment of the secretary of state of the state of Iowa * * *.'

No contention is made that the plaintiff did not follow the provisions of the code in serving notice upon the secretary of state. The trial court upheld a special appearance filed by the defendant questioning its jurisdiction, and determined that the defendant is not amenable to suit in Iowa. The plaintiff, thus being left without remedy so far as her action in Iowa is concerned, appeals.

I. The defendant in its written brief states that the sole question involved 'is whether the defendant committed a tort, in whole or in part, in the State of Iowa.' It would somewhat simplify our discussion if we should take the defendant at its word; but the argument does in fact discuss two points: first, whether a tort was committed in Iowa, and second, whether the commission of one tort, if a tort was in fact committed here, is in itself a sufficient 'minimum contact' with the state to justify the manner of obtaining jurisdiction provided by section 617.3 as it now reads. The questions involved may be stated thus: Was a tort committed by the defendant, in whole or in part, within the State of Iowa, within the meaning of section 617.3; and whether, if the first question is answered in the affirmative, the statute violates fair concepts of due process of law.

II. We address ourselves first to the question whether a tort was in fact committed by the defendant in Iowa. It is its contention that the tort is the affirmative act of negligence itself, and that a resulting injury, if one occurs, is not a part of the tortious act. Few authorities have had the temerity to attempt an all-inclusive definition of the word 'tort' which would be applicable in all cases. It is often said that a tort is a breach of a duty owed to another; from which the implication is possible that the injury and damage are not part of the tort itself. Other authorities include the injury as an essential part of the tort. It must be kept in mind that we are here dealing with the intent of the legislature in enacting the statute as it presently appears; in particular, what it intended to, and did, say when it used the words 'in whole or in part'. It must be recognized that the lawmakers had in mind that a tort might be committed in part only in Iowa; that some elements might be found outside the state. This lends some weight to the plaintiff's position, although it is not conclusive.

On the substantial question whether jurisdictional statutes such as our section 617.3 apply to and include torts in which the only part occurring in the state is the resulting injury the authorities are divided. Both plaintiff and defendant are able to cite cases from other jurisdictions which support their positions. For the plaintiff, there are Atkins v. Jones & Laughlin Steel Corp., 258 Minn. 571, 104 N.W.2d 888, followed in Ehlers v. United States Heating & Cooling Mfg. Corp., 267 Minn. 56, 124 N.W.2d 824; Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761; and Smyth v. Twin State Improvement Corp., 116 Vt. 569, 80 A.2d 664, 25 A.L.R.2d 1193. The latter case is distinguishable on its facts because it appears that the tortious acts in addition to the injury, occurred in Vermont. The case is chiefly valuable for its discussion.

In support of its position the defendant cites Rufo v. Bastian-Blessing Company, 405 Pa. 12, 173 A.2d 123; Mann v. Equitable Gas Company, D.C., 209 F.Supp. 571; and the English case of George Monro v. American Cyanamide and Chemical Corporation, 1 K.B. 432.

The Minnesota and Vermong statutes are, for all substantial purposes, identical with our section 617.3, supra. The Illinois statute, instead of using the word 'tort' says 'tortious act'. The Illinois Supreme Court said: 'Titan (a defendant) seeks to avoid this result by arguing that instead of using the word 'tort,' the legislature employed the term 'tortious act'; and that the latter refers only to the act or conduct, separate and apart from any consequences thereof. We cannot accept the argument. To be tortious an act must cause injury. The concept of injury is an inseparable part of the phrase.' It appears that the defendant, conceding arguendo that the word 'tort' includes the injury, attempted to distinguish the words 'tortious act' actually used; but the Illinois Court held that even these words necessarily included the injury, as used in the Illinois statute providing for means of obtaining jurisdiction over foreign corporation not licensed or having agents in the state.

The Pennsylvania statute under which Rufo was decided was based on 'negligent acts or omissions'. Whether this is in effect so much different from 'a tort in whole or in part', as the Iowa law is worded, that a fair distinction should be drawn we shall not attempt to say. Even accepting the argument that the Pennsylvania, and West Virginia Federal District Court holdings, and the English authority cited are directly in point, we still must conclude that the Minnesota and Illinois cases cited above are better reasoned and more in line with the modern trend.

Other authorities support this view. Restatement, Conflict of Laws, section 377, says: 'The place of wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place.' The significance of this rule is pointed up in Price v. State Highway Commission, 62 Wyo. 385, 167 P.2d 309, 312, in this language: 'Generally speaking and without undertaking in the least an all inclusive definition, a tort has a meaning somewhat similar to wrong and is an unlawful act injurious to another independent of contract.' It is held in Jones v. Matson, 4 Wash.2d 659, 104 P.2d 591, 596, 597, 134 A.L.R. 708: 'The elements of a tort are a wrong committed and damage resulting therefrom (Cooley on Torts, 3d Ed., p. 3).' In Hornaday v. Hornaday, 95 Cal.App.2d 384, 213 P.2d 91, it was held that a conspiracy in itself, without resulting harm, did not constitute an actionable tort.

We must assume that the legislature, in wording section 617.3 as it has now done, had in mind an actionable tort, rather than an act which by itself, without resulting injury, would not give a basis for recovery. It is also of considerable importance that the statute says 'in whole or in part'. It is not a strained or illogical conclusion that the legislature had in mind the exact situation here present, where the negligence occurred in another state, but the injury was inflicted in Iowa. In this situation, adopting what we think is the proper definition of a tort as related to the remedy contemplated by the statute, we think the tort was committed 'in part' in Iowa.

Some attention must be given to our own case of Hill v. Electronics Corporation of America, 253 Iowa 581, 589, 113 N.W.2d 313, 318. This case is much relied upon by the defendant, and was apparently thought significant by the trial court. There is specific language therein which we quote; 'Plaintiff suggests these defendants committed a tort in whole or in part in Iowa against a resident thereof and, under this chapter, by such acts were doing business here for the purpose of service of original notice. It is doubtful at best if the alleged tort was committed in whole or in part in Iowa although the injury occurred here. Rufo v. Bastian-Blessing Co., supra, 405 Pa. 12, 173 A.2d 123, 128-129, and citations. However, we need not decide the point.' The actual holding in the case was that section 617.3 was not retroactive, and since the injury occurred before the enactment of the pertinent amendment to the section it did not govern.

It is evident that the language quoted was no more than obiter dictum. It is clearly so stated. Since the decision of the point was not necessary or in any way involved in ...