Bowen v. Bateman

• Decision Date: 21 August 1969
• Docket Number: No. 40633,40633
• Citation: 458 P.2d 269,76 Wn.2d 567
• Parties: Russel BOWEN and Lanore S. Bowen, husband and wife, Respondents, v. John B. BATEMAN and Wilma R. Bateman, d/b/a Universal Land Company, Respondents, Stanley Selig and Jane Doe Selig (whose true Christian name is to Plaintiff unknown) husband and wife; and Ben L. Selig and Mary Roe Selig (whose true Christian name is to Plaintiff unknown), husband and wife; the Seligs are a co-partnership d/b/a Selig Bros. Real Estate Co., Petitioners.
• Court: Washington Supreme Court

Page 567

76 Wn.2d 567

458 P.2d 269

Russel BOWEN and Lanore S. Bowen, husband and wife, Respondents, v. John B. BATEMAN and Wilma R. Bateman, d/b/a Universal Land

Company, Respondents,

Stanley Selig and Jane Doe Selig (whose true Christian name

is to Plaintiff unknown) husband and wife; and Ben L. Selig

and Mary Roe Selig (whose true Christian name is to

Plaintiff unknown), husband and wife; the Seligs are a

co-partnership d/b/a Selig Bros. Real Estate Co., Petitioners.

No. 40633.

Supreme Court of Washington, Department 2.

Aug. 21, 1969.

Davis, Arneil, Dorsey & Kight,

Milburn D. Kight, Wenatchee, for appellant.

Ries & Kenison, Darrell E. Ries, Moses Lake, for respondent.

ENNIS, Judge. ¹

Stanley Selig and Ben Selig are residents of the state of Indiana. In January, 1966 they placed advertisements in various newspapers published in the state of Washington, including Seattle and Spokane papers. The advertisements concerned opportunities in Brazilian real estate. Descriptive booklets were offered and interested parties were urged to contact Selig Bros. Real Estate Company in Indianapolis, Indiana for details. The street address and telephone number accompanied the advertisement.

John R. Bateman, a resident of Moses Lake, Washington, responded to the advertisement and was sent a brochure. Thereafter, Bateman called Stanley Selig in Indianapolis, who made what Bateman described as 'an interesting presentation.' An arrangement was made between Stanley Selig and Bateman whereby Bateman would enter into a contract with Selig to purchase a large block of land in Brazil, with the intent that Bateman would resell it at a price set by Selig. Bateman's price was to be discounted, and Bateman's compensation would be the difference between Bateman's price and the established resale price.

Often, throughout this opinion, petitioners will be spoken of in the singular since all negotiations and transactions were handled by Stanley Selig.

Selig furnished Bateman with information and brochures for use in his contacts with prospective purchasers in the state of Washington. Respondents, Russel Bowen, and others similarly situated, relying upon the information and representations contained in the brochures supplied by Selig, entered into contracts to purchase parcels of land in Brazil. Selig agreed to deliver titles directly to respondents and other purchasers when the total price for each parcel was paid, and a provision to that effect was contained in the contract between respondents Bowen and Bateman.

An arrangement was then worked out by Bateman and the Old National Bank at Pasco, Washington, whereby Bowen and other purchasers made payments to the bank, which were remitted directly to Selig.

As it turned out, Selig was never able to comply with the requirements of the Brazilian government with regard to registration of land to be resold and, therefore, was unable to convey title to anyone. When this became known, Bowen commenced an action in the Superior Court of Grant County, individually and as assignee under certain other purchase and sale agreements, to declare the contracts null and void, and to recover judgment against Bateman and the Seligs in the amount of $4,177.84, the amount paid toward the land purchases. The complaint also alleged that the real property was not physically or geographically as represented.

The Seligs were served with summons and complaint in Indiana. They appeared specially and moved to quash the service of summons and complaint on the ground that the Washington court lacked jurisdiction over them. This motion was denied by the trial court and this court issued a writ of certiorari which has brought the matter here for review.

Petitioners contend, by way of affidavit, that neither they nor anyone acting on behalf of Selig Bros. Real Estate Company have done or transacted any business in the state of Washington, sent any agents or salesmen into the state of Washington, or kept or maintained any office, personnel advertising, telephone lists, goods or property in the state of Washington. Ben Selig additionally contends that he is disassociated with any real estate activities participated in by his brother, Stanley.

Respondents Bowen claim jurisdiction over petitioners under the provisions of RCW 4.28.185. The 'long-arm statute' provides, in part, as follows:

(1) Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts in this section 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;

(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 defendant outside this state, as provided in RCW 4.28.180, with the same force and effect as though personally served within this state.

The issue here is whether or not petitioner, individually or through an agent, transacted any business or committed a tortious act within the state of Washington.

We will first consider whether the contacts petitioners had with the state of Washington were sufficient to establish jurisdiction under the long-arm statute apart from any question of agency between Bateman and Selig.

Early analysis of this statute had recourse to the United States Supreme Court decisions which had followed a course of liberalization of the requirements necessary in order to establish jurisdiction over non-residents. United States Supreme Court cases resulted in the formulation of the minimum contact rule. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057 (1945); McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). These cases were analyzed in Tyee Constr. Co. v. Dulien Steel Products, Inc., 62 Wash.2d 106, 381 P.2d 245 (1963). In that case, we said at 115--116, 381 P.2d at 251:

Against the backdrop of these decisions, and within the framework of our statute, it would appear reasonable, however, to conclude that there are three basic factors which must coincide if jurisdiction is to be entertained. Such would appear to be: (1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.

(Footnotes omitted.)

Thereafter a series of cases refined and spelled out the broad guidelines established in Tyee.

We will examine these cases in order to determine the type of acts or transactions that have been deemed sufficient to confer Washington jurisdiction on a nonresident.

In Nixon v. Cohn, 62 Wash.2d 987, 385 P.2d 305 (1963), an Oregon concern manufactured and sold an amusement ride to a Washington resident with knowledge that it would be used at the Century 21 Exposition at Seattle. The buyer took delivery of the machine in Oregon. After the machine was placed in operation, three passengers were hurled from it. They sustained injuries and two of the passengers became plaintiffs in an action which included the Oregon manufacturer as a defendant. The Oregon corporation contested the jurisdiction claiming that it did no business in Washington, had no agent or employee in Washington, owned no property in Washington, had no office or telephone listing in Washington, and at no time relevant to that case sold or solicited the sale of any goods or merchandise within the state of Washington.

Our court ruled that the Oregon firm was subject to Washington jurisdiction by reason of the fact that the machine was sold under a conditional sale contract in which ownership was reserved to the seller until the purchase price was paid in full. The contract conferred the right of repossession in the event of default. The court pointed out that the seller could have availed itself of the use of Washington courts if necessary to enforce its rights, and that since it accepted the benefits of Washington law, it should be subject to its burdens.

In that decision, the court called attention to the fact that the president of the Oregon corporation had made a trip to Seattle to discuss the lighting equipment, and, after the accident, again went to Seattle to inspect the machine. Further, the Oregon manufacturer had held itself out as available to service the machine when needed, and did make certain alterations after the accident. The court pointed out that while the retention of title standing alone might not be enough to confer jurisdiction, when coupled with the other acts above mentioned, it would justify our courts in taking jurisdiction.

The court also dealt at some length with the 'tortious act' provision of the statute and held that where damages occur in Washington as a result of negligence, the injury is an inseparable part of the 'tortious act.'

In Golden Gate Hop Ranch, Inc. v. Velsicol Chemical Corp., 66 Wash.2d 469, 403 P.2d 351 (1965), the court based its decision on the Nixon v. Cohn, Supra, 'tortious act' holding and required an Illinois corporation to submit to Washington jurisdiction. The act upon which liability was predicated was the writing and mailing of a letter from the Chicago office of the appellant corporation, recommending the use of heptachlor on hops. In...