Golden Gate Hop Ranch, Inc. v. Velsicol Chemical Corp.
| Citation | 66 Wn.2d 469,403 P.2d 351 |
| Decision Date | 17 June 1965 |
| Docket Number | No. 37411,37411 |
| Court | United States State Supreme Court of Washington |
| Parties | GOLDEN GATE HOP RANCH, INC., a corporation, Respondent, v. VELSICOL CHEMICAL CORPORATION, a corporation, Appellant. |
Helsell, Paul, Fetterman, Todd & Hokanson, Wm. A. Helsell, Seattle, for appellant.
Halverson, Applegate, McDonald, & Weeks, Alan A. McDonald, Yakima, for respondent.
The respondent, owner of a large hop ranch in Yakima County, Washington, obtained a jury verdict in the trial court for $215,027.26, in its suit brought against the manufacturer of a chemical called 'heptachlor' for damage to its hop yards and lands, which the jury found was occasioned by the negligence of an agent of the appellant who recommended that the chemical be used on the hops.
The appellant's first contention is that its motion to quash service of process was improperly denied. A copy of the summons and complaint were served on a corporate officer of the appellant in Chicago, Illinois, on September 4, 1959. The statute which gives the courts of this state jurisdiction over a nonresident when he has been served personally outside this state, is RCW 4.28.185. That statute provides (in pertinent part) '(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;
'(3) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.
'(4) Personal service outside the state shall be valid only when an affidavit is made and filed to the effect that service cannot be made within the state.'
The act upon which liability in this case 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. The letter was sent to an officer of the respondent corporation's parent corporation in New York. The appellant contends that, since this act did not occur in this state, the requirements of the statute were not met.
However, in the recent case of Nixon v. Cohn, 62 Wash.2d 987, 385 P.2d 305, we held that, where damages result from negligence of a defendant, the injury occurring in this state is an inseparable part of the 'tortious act,' as that term is used in the statute. Consequently, the respondent brought itself within one of the subdivisions of the act and was entitled to take advantage of its provisions.
There was also evidence that, while heptachlor in its raw form is not sold in this state, but is sold to manufacturers in other states who combine it with other ingredients to form usable pesticides, which are then sold through distributors in this state, the appellant manufacturer does engage in nationwide advertising and has sent a representative to this state to do 'missionary' work for the product.
The company also subsidizes a research laboratory at Washington State College, at Pullman, which conducts tests in the use of the chemical. A strong argument can be made that these activities were sufficient to constitute the transacting of business within this state, as that term is used in the statute. However, it is not necessary for us to decide whether the appellant's activities fall within that classification, inasmuch as the fact that the injury occurred in this state was sufficient to bring the case within the 'tortious act' classification. Nixon v. Cohn, supra.
We note also in passing that it appears that the court in Yakima County was the most convenient forum in which to try the issues.
The appellant maintains that service was not effected according to the terms of the statute inasmuch as the affidavit required by paragraph 4 thereof was not filed until September 15, 1959, eleven days after the summons and complaint were delivered.
The statute does not provide that the affidavit must be filed Before the summons and complaint are served, but simply that the service will be valid only when such an affidavit is filed. Consequently, the service became valid when the affidavit was filed. Furthermore, we have the rule in this state that substantial and not strict compliance is sufficient where a proper affidavit is filed, although late, where it appears that no injury was done the defendant as a result of the late filing. Whitney v. Knowlton, 33 Wash. 319, 74 P. 469.
The appellant urges that its motion for a new trial should have been granted because of misconduct of the bailiff. Five jurors made affidavits that the bailiff had told them, on Friday evening after they had been sent to begin their deliberations, that if they did not reach a verdict before ten o'clock that evening, they would be locked up for the weekend, because the judge would not be there to receive their verdict before Monday morning.
The bailiff denied that he made this statement, and other jurors signed affidavits that no such statement was made in their presence. The trial court found as a fact that the statement was not made. Since the evidence on the matter was conflicting, it was necessary that the trial court make a finding of fact as to whether the alleged misconduct occurred; and this court will accept the trial court's finding. Gardner v. Malone, 60 Wash.2d 836, 376 P.2d 651.
By its fourth assignment of error, the appellant advances the proposition that the evidence was insufficient to support a finding that it was guilty of negligence.
The evidence established that the respondent, through an agent of its parent corporation, applied to the appellant for information about the proper use of products containing heptachlor on its hop crops. The inquiry was inspired by the Miller Amendment of the Federal Food, Drug and Cosmetic Act pertaining to residues of pesticides on raw agricultural commodities, which might be harmful to human beings. The appellant's entomologist replied with the following letter:
'May 4, 1956
'Mr. S. Stinor Gimbel
S. S. Steiner, Inc
655 Madison Avenue
New York 21, N.Y
'Dear Mr. Gimbel.
'Your letter of April 27, 1956 was referred to me for answering since I have been handling out label acceptances.
'We have a release from the hop growers' association of Washington listing two types of applications for heptachlor on hops as follows:
'1--50 Lbs. of Heptachlor 2 1/2% Dust per acre directed at the base of the plants. This application is made early in June.
'2--Apply 5 Lbs. of actual heptachlor to the soil before growth starts and disk into the soil.
'These applications would not leave a residue on the harvested part of the plant due to the timing of the applications.
'The Food and Drug Administration do not require tolerances if the...
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