Coe & Payne Co. v. Wood-Mosaic Corp.

• Decision Date: 10 March 1972
• Docket Number: 46726,No. 2,46727 and 46739,Nos. 46725,WOOD-MOSAIC,46740,s. 46725,2
• Citation: 189 S.E.2d 459,125 Ga.App. 845
• Court: Georgia Court of Appeals
• Parties: COE & PAYNE COMPANY v.CORPORATION et al. ATLANTA FLOORING COMPANY v.CORPORATION et al. (two cases). C. P. COMPANY v.CORPORATION et al. Betty C. ALLEN v.CORPORATION et al

Page 459

189 S.E.2d 459

125 Ga.App. 845

COE & PAYNE COMPANY v. WOOD-MOSAIC CORPORATION et al.

ATLANTA FLOORING COMPANY v. WOOD-MOSAIC CORPORATION et al. (two cases).

C. P. COMPANY v. WOOD-MOSAIC CORPORATION et al.

Betty C. ALLEN v. WOOD-MOSAIC CORPORATION et al.

Nos. 46725, 46726, 46740, 46727 and 46739.

Court of Appeals of Georgia, Division No. 2.

March 10, 1972.

Rehearing Denied March 31, 1972.

Syllabus by the Court

1. The Long-Arm Statute gives jurisdiction over nonresidents against whom are asserted claims which arise out of certain

enumerated acts. Since the occurrence of these acts is the determinative factor and the claims in the case sub judice are perforce predicated on events occurring in 1968, we apply the Long-Arm Statute as then in effect.

2. Here reliance was placed on two jurisdictional grounds contained in the Long-Arm Statute; transaction of any business; commission of a tortious act within the state.

(a) Insofar as 'transacting any business' is concerned, the basis for the assertion of personal jurisdiction is the location of acts or conduct. Furthermore, the business must have been transacted with the one who is asserting the cause of action or claim. Where the proof establishes that any business which was transacted took place in a foreign state and the only contacts were shipments made F.O.B. the foreign state, then jurisdiction on this ground must fail.

(b) The language 'commits a tortious act within this state' does not encompass the situation where a nonresident corporation commits an act outside the state which causes injury within the state.

These cases arise out of the Atlanta Gas Light Tower fire of December 5, 1968, which caused the deaths of four people and extensive property damage.

The principal parties involved in these cases are herein set out. They are C. P. Company (hereinafter referred to as C. P. Company); Coe & Payne Company (hereinafter referred to as Coe & Payne); Overall Paint Company (hereinafter referred to as Overall Paint); Wood-Mosaic Corp. (hereinafter referred to as Wood-Mosaic); Atlanta Flooring Company (herinafter referred to as Atlanta Flooring); Betty C. Allen (hereinafter referred to as Allen).

The action involving appeals 46725, 46726 and 46727 was brought by C. P. Company, the owner of the building, for property damage. Coe & Payne, one of three named defendants, filed third-party complaints against Atlanta Flooring, Overall Paint, and Wood-Mosaic, as well as several other parties. Atlanta Flooring, in turn, filed cross claims against Wood-Mosaic and Overall Paint.

The action involving appeals 46739 and 46740 was brought by plaintiff Allen for the wrongful death of her husband, a workman killed in the fire. The defendants included Atlanta Flooring, Overall Paint and Wood-Mosaic. Atlanta Flooring filed cross claims against Wood-Mosaic and Overall Paint.

The pleading and evidence of record showed that one theory as to the cause of the fire involves the possible explosion of vapors given off by an adhesive known as 'R-65,' which is designed to be used in the laying of parquet flooring. Coe & Payne, a flooring contractor, was laying parquet flooring in the Gas Light Tower on the day of the fire, and was using R-65. The adhesive was manufactured by Overall Paint, an Ohio corporation, and distributed by Wood-Mosaic, a Kentucky corporation, for use with its parquet flooring. The adhesive was sold by Wood-Mosaic to Atlanta Flooring, a Fulton County concern, and Atlanta Flooring, in turn, sold the adhesive to Coe & Payne.

Both Overall Paint and Wood-Mosaic asserted jurisdictional defenses, claiming that they were not subject to the jurisdiction of Georgia courts under the Georgia Long-Arm Statute, the chosen basis of jurisdiction. After hearing evidence on the motions of those two parties, the trial court sustained their position and dismissed the various pleadings as to Overall Paint and Wood-Mosaic. The appeals are here upon certificates of immediate review.

46726 is the appeal of Atlanta Flooring from the trial court's order dismissing the third-party complaint as to Overall Paint and Wood-Mosaic, and consequently dismissing Atlanta Flooring's cross claims against those third-party defendants. C. P. Company and Coe & Payne also appealed from the trial court's order, which appeals bear docket numbers 46727 and 46725 respectively. Those two appeals and the appeal of Atlanta Flooring Company have been consolidated.

46739 is the appeal of Allen from the trial court's order dismissing the complaint as to Overall Paint and Wood-Mosaic. 46740 is the appeal of Atlanta Flooring from this order and the consequent dismissal of its cross claim against the defendants Overall Paint and Wood-Mosaic.

With these facts in mind, we now consider the pleadings. First with regard to the C. P. Company appeals and then with regard to the Allen appeals.

The action involved in the C. P. Company's appeals commenced with the filing of a complaint by C. P. Company against Coe & Payne Company and two other defendants. The short form complaint simply alleged that three defendants negligently caused the fire in question causing plaintiff damage in excess of $110,000.

Coe & Payne answered and filed a third-party complaint against Atlanta Flooring, Wood-Mosaic, Overall Paint, and others. The third-party complaint alleged, as to Overall Paint and Wood-Mosaic, that those parties were nonresidents of the State of Georgia, but transacted business and had committed tortious acts within the State of Georgia so as to be subject to the jurisdiction of the courts of Georgia under the Georgia Long-Arm Statute (Ga.L.1966, p. 343; 1968, p. 1419; 1970, p. 443; Code Ann. § 24-113.1 et seq.).

The third-party complaint alleged that the fire was caused when fumes or vapors from 'R-65 Wood Block Flooring Adhesive' exploded or caught fire; that the adhesive was manufactured by Overall Paint, had been expressly recommended, specified and sold by Wood-Mosaic, manufacturers of the parquet flooring being installed by Coe & Payne and had been sold to Coe & Payne by Atlanta Flooring Company; the third-party complaint then alleged liability based upon both negligence and warranty against Overall Paint, Wood-Mosaic, and Atlanta Flooring, and concluded with prayers that Coe & Payne have judgment against the third-party defendants for all or part of any sums that might be adjudged against it in favor of plaintiff.

Atlanta Flooring answered the third-party complaint and asserted cross claims against Overall Paint and Wood-Mosaic. In its cross claims, Atlanta Flooring alleged that if in fact the 'R-65 Wood Block Flooring Adhesive' contributed to this fire and was sold by Atlanta Flooring to Coe & Payne, then Atlanta Flooring had purchased that adhesive from Wood-Mosaic, that the adhesive was manufactured by Overall Paint, that both Overall Paint and Wood-Mosaic had impliedly warranted to Atlanta Flooring that the adhesive was merchantable and fit for the use intended, and that if the adhesive was in fact not merchantable and fit for the use intended, then Overall Paint and Wood-Mosaic would have breached their warranties as described. The cross claim further asserted negligence on the part of both Overall Paint and Wood-Mosaic, and prayed for judgment over against Overall Paint and Wood-Mosaic in the event that any judgment is returned against Atlanta Flooring.

Wood-Mosaic filed its answer to the third-party complaint, wherein it asserted, inter alia, jurisdictional defenses. Wood-Mosaic also filed its motion to dismiss the third-party complaint, asserting insufficiency of process, lack of jurisdiction, and unconstitutionality of the Georgia Long-Arm Statute.

Similarly, Overall Paint filed its answer to the third-party complaint, asserting several jurisdictional defenses. Overall Paint also filed a motion for summary judgment.

Plaintiff C. P. Company then filed an amended complaint wherein it added as parties defendant Atlanta Flooring, Overall Paint, and Wood-Mosaic, as well as certain other parties. Basically, the allegations of the amended complaint repeated the allegations of Coe & Payne's third-party complaint.

Atlanta Flooring filed its answer to plaintiff's amended complaint, asserting cross claims against Overall Paint and Wood-Mosaic identical to those contained in its answer to the third-party complaint. Overall Paint filed an answer to plaintiff's amended complaint basically identical to its original answer to the third-party complaint. Similarly, Wood-Mosaic filed an answer to plaintiff's amended complaint paralleling its earlier answer.

Wood-Mosaic subsequently filed, as 'third-party defendant and an additional named defendant,' a motion for summary judgment for want of jurisdiction. Overall Paint also filed a motion for summary judgment 'as a defendant and a third-party defendant.' Overall Paint's second motion was identical to its first, simply referring to its new-found status as a defendant as well as a third-party defendant.

The action involving Allen's appeals commenced with the filing of a complaint by plaintiff against Atlanta Flooring, Wood-Mosaic, Overall Paint, and others. The complaint alleged, as to Overall Paint and Wood-Mosaic, that those parties were nonresidents of the State of Georgia, but transacted business and had committed tortious acts within the State of Georgia so as to be subject to the jurisdiction of the courts of Georgia under the Georgia Long-Arm Statute (Ga.L.1966, p. 343; 1968, p. 1419; 1970, p. 443; Code Ann. § 24-113.1 et seq.).

The complaint alleged that the adhesive used in installing floors where plaintiff's husband was working was manufactured by Overall Paint, had been expressly recommended and specified by Wood-Mosaic, manufacturers of the flooring being installed, and had been sold to Coe & Payne (a flooring contractor and plaintiff's husband's employer) by Atlanta Flooring Company. The complaint then alleged liability based upon...