Foye v. Consolidated Baling Mach. Co.

• Decision Date: 09 May 1967
• Citation: 229 A.2d 196
• Parties: John FOYE v. CONSOLIDATED BALING MACHINE COMPANY.
• Court: Maine Supreme Court

Page 196

229 A.2d 196

John FOYE v. CONSOLIDATED BALING MACHINE COMPANY.

Supreme Judicial Court of Maine.

May 9, 1967.

Smith & Elliott, by Charles W. Smith, Saco, for appellant.

Verrill, Dana, Walker, Philbrick & Whitehouse, by John W. Philbrick, Portland, for appellee.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN and DUFRESNE, JJ.

WEBBER, Justice.

This case requires an interpretation of 14 M.R.S.A. Sec. 704(1), our so-called 'long arm' statute originally enacted as P.L.1959, Ch. 317, Sec. 125. As applicable to the facts of the instant case the statute subjects a nonresident 'to the jurisdiction of the courts of this State as to any cause of action arising from * * * B. The commission of a tortious act within the State resulting in physical injury to person or property.' (Emphasis ours) This statute was borrowed with only slight change from the Illinois 'long arm' statute (R.S. Ch. 110, Par. 17). The change referred to is found in the addition of the italicized words, 'resulting in physical injury to person or property', not found in the Illinois statute. 'In Nelson v. Miller, (1957) 11 Ill.2d 378, 143 N.E.2d 673, the Illinois Supreme Court said that the Illinois long arm statute upon which the Maine act was based reflected 'a conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due process clause.' As stated in the Text, it is a principle of statutory construction that when a statute has been directly taken from that of another state, it is assumed that the Maine Legislature was familiar with the interpretative rulings previously made by the courts of that state and intended to adopt them. When the Maine statute was under consideration by the Legislature, Nelson v. Miller was cited to the Judiciary Committee, which strengthens the presumption that the broad interpretation there set forth was intended to be a guide to the Maine courts.' Field & McKusick, Maine Civil Practice, 1967 Supp., page 20. We are satisfied as were these text writers that the Legislature intended to fashion a 'long arm' statute of maximum permissible reach 'to the extent permitted by the due process clause.'

In the case before us the complaint charged the nonresident defendant as manufacturer and vendor of a dangerous and defective paper press. It charged defendant with knowledge of defects and failure to warn. Plaintiff was alleged to have been injured as a result of these defects while operating the machine in Maine. Service was made on defendant in New York. Defendant appeared specially and filed motion to dismiss on jurisdictional grounds. An affidavit filed in support of the motion showed that defendant was vendor but not manufacturer of the paper press, that it purchased the machine from the manufacturer and sold it to a Massachusetts company and that upon the order and request of he purchaser the defendant shipped the machine directly to the plaintiff's employer in Maine. Wherever there is inconsistency as between the allegations of the pleadings and the facts stated by affidavit, the affidavit controls for the purpose of determining the motion. Sawyer v. Congress Square Hotel Co., (1961) 157 Me. 111, 114, 170 A.2d 645. It is not disputed that defendant maintained no office or employees within this State, transacted no other business here, and jurisdiction must rest if at all, on this single transaction.

In our view a vendor who by direct shipment places a dangerous instrumentality in the hands of a citizen of this State where it can and subsequently does cause injury thereby commits a 'tortious act' within this State, at least within the broad interpretation which we have said should be given to the 'long arm' statute. In discussing the New Hampshire 'long arm' statute which has also been interpreted as 'exerting jurisdiction over foreign corporations up to the constitutional limit', Kenison, C. J. said in Roy v. North American Newspaper Alliance, Inc., (1964) 106 N.H. 92, 205 A.2d 844, 847: 'If a defendant, whether an individual or foreign corporation, negligently shoots a bullet from state X into state Y, or while engaged in blasting operations in state X causes a stone to be hurled into state Y causing damage, we do not seriously question the right of the injured person to seek redress in state Y and exercise judicial jurisdiction over the defendant in state Y. * * * 'While no one recently seems to have stood in one state and fired a gun at a human target across the state line, currently we do find jurisdiction over nonresidents in civil damage cases based on such out-of-state activities as sending dangerous or defective products into the state and broadcasting defamatory statements received within the state.' Cleary, The Length of the Long Arm, 9 J.Pub.L. 293, 300 (1960).' This dictum suggests to us the concept of what we may term the continuing act. For jurisdictional purposes from the time the dangerous instrumentality set in motion by the defendant enters the State and while it proceeds within the State to the point of injurious contact with the plaintiff, the defendant may properly be deemed to be 'acting' within the State.

In Gray v. American Radiator & Standard Sanitary Corp., (1961) 22 Ill.2d 432, 176 N.E.2d 761, 763 the nonresident defendant supplied a defective safety valve to the manufacturer of a water heater outside of Illinois. The defendant had no further dealings with the heater which in the course of commerce was sold to an Illinois consumer. It exploded in Illinois and injured the plaintiff. Defendant had no other contacts with Illinois. As already noted, under Illinois law jurisdiction is asserted over a nonresident who 'commits a 'tortious act' within this State.' The court reasoned that the resulting injury was an inseparable part of the whole tort and was itself a 'tortious act' within the meaning of the statute. As justification for its very liberal interpretation of the phrase 'tortious act within this State', the court said: 'We think the intent should be determined less from technicalities of definition than from considerations of general purpose and effect. To adopt the criteria urged by defendant would tend to promote litigation over extraneous issues concerning the elements of a tort and the territorial incidence of each, whereas the test should be concerned more with those substantial elements of convenience and justice presumably contemplated by the legislature. As we observed in Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673, the statute contemplates the exertion of jurisdiction over nonresident defendants to the extent permitted by the due process clause.'

We recognize that the difference in wording between the Illinois statute and the Maine statute would make it difficult for us to apply the reasoning relied upon in Gray. As above noted, our statute adds after the words '(t)he commission of a tortious act within the State' the words 'resulting in physical injury to person or property.' This suggests rather clearly that the 'tortious act' must be antecedent to and productive of the resulting injury. We therefore confine our result to the facts of this case and the situation in which the defendant has himself sent the dangerous instrumentality directly into this State. We neither intimate nor suggest what our holding would be where as in Gray the defendant has had no contact with this State prior to or apart from the resulting injury.

The New York court, interpreting the identical phrase construed in Gray, declined to follow the Illinois court. The case reported as Longines-Wittnauer W. Co. v. Barnes & Reinecks, Inc., (1965) 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68, 77, 81, 84 is in fact a trilogy of cases decided together, two of which are of interest here. In the second of these cases, Feathers v. Lucas, the nonresident defendant manufactured an allegedly defective steel tank which it sold to another nonresident outside of New York. While the tank was being transported by the ultimate purchaser within New York, it exploded, injuring the New York plaintiff. A divided court was satisfied that the New York statute, properly construed, did not assert jurisdiction under these circumstances. The court said: 'The language * * * 'commits a tortious act within the state'-is too plain and precise to permit it to be read * * * as if it were synonymous with 'commits a tortious act without the state which causes...