Myers v. Brickwedel

• Decision Date: 23 July 1971
• Citation: 259 Or. 457,486 P.2d 1286
• Parties: Vernon L. MYERS, Appellant, v. Frank J. BRICKWEDEL, Respondent.
• Court: Oregon Supreme Court

Page 1286

486 P.2d 1286

259 Or. 457

Vernon L. MYERS, Appellant, v. Frank J. BRICKWEDEL, Respondent.

Supreme Court of Oregon.

Argued and Submitted June 1, 1971.

Decided July 23, 1971.

R. Ryan Lawrence, Portland, argued the cause for appellant. With him on the briefs were Peterson, Chaivoe & Peterson and Susak & Lawrence, Portland.

Sydney L. Chandler, Coos Bay, argued the cause for respondent. With him on the brief were Walsh, Chandler & Walberg, Coos Bay.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, TONGUE and HOWELL, JJ.

TONGUE, Justice.

This is an appeal from an order dismissing a case after the granting of a motion to quash service of the summons and complaint. That service had been made on defendant in California under ORS 14.035, the Oregon 'long-arm' statute.

The complaint was filed by plaintiff, also a resident of California, and alleged that he was the husband of Wilma Rita Myers; that defendant had enticed her to abandon him and his home; that 'while in Portland, Multnomah County, State of Oregon, defendant did wilfully and maliciously debauch and carnally knew the said Wilma Rita Myers,' causing her to abandon plaintiff and depriving him of the conjugal relationship with his wife, all to his damages in the sum of $50,000 general damages and $150,000 punitive damages. It appears, however, that actions for damages for alienation of affections and criminal conversation, although still permitted in Oregon, have been abolished in California. Section 43.5 California Civil Code.

Plaintiff contends on this appeal: (1) that the only question properly before this court is whether an Oregon court may properly take personal jurisdiction based upon service under ORS 14.035 over a nonresident defendant who has voluntarily come into the state and has committed a single tortious act, and (2) that all questions of conflicts of law to be applied in deciding the results of the case are now 'premature,' subject to being considered and decided later, and only after the Oregon court has taken jurisdiction over the defendant in such a case.

In response, defendant contends, in effect: (1) that the 'single tortious act' described in this complaint does not satisfy the 'criteria' established by this court in State ex rel. White Lumber Sales, Inc. v. Sulmonetti, 252 Or. 121, 448 P.2d 571 (1968), both (a) because plaintiff is not a resident of Oregon, giving it a 'special reason' to protect the interests of a resident from injury by a nonresident, and (b) because the complaint does not allege that the tort of alienation of affections took place in Oregon; (2) that the exercise of jurisdiction in such cases should be 'handled, if necessary, by judicious use of forum non conveniens' with the result that where, as in this case, the 'most significant relationship' and 'contacts' are in California, it would follow that Oregon has no 'interest in the application of the forum State's law,' and (3) that 'it would be futile to assert jurisdiction without choosing the applicable state law,' since if the law of California is applicable plaintiff cannot recover in this case.

This court has previously held that in cases in which the jurisdiction of the court rests upon service of process upon a defendant in another state under ORS 14.035, the Oregon 'long-arm' statute, two questions are presented: (1) Does the case fall within the terms of ORS 14.035? If so, (2) Does due process permit an Oregon court, as a matter of constitutional law, to obtain and exercise personal jurisdiction over the defendant in such a case? State ex rel. Western Seed Production Corp. v. Campbell, 250 Or. 262, 270--272, 442 P.2d 215 (1968). See also Levin, The 'Long-Arm' Statute and Products Liability, 4 Will L.J. 331, 337 (1967).

The first question is not difficult in this case. ORS 14.035(1)(b) authorizes service upon an out-of-state defendant 'as to any cause of action or suit or proceeding arising from * * * the commission of a tortious act within this state * * *.' We held in Western Seed (at p. 271, 442 P.2d at p. 219) that this statute, as also true of the Illinois statute upon which it was modeled, should be interpreted 'as broadly as constitutional due process will permit.'

This complaint may be somewhat ambiguous whether it alleges that the tort of alienation of affections was committed within this state, since the act alleged to have taken place in Oregon may not have resulted in an alienation of the affections of plaintiff's wife in Oregon. The alienation of her affections may have occurred at some other and subsequent time and place. However, the complaint also alleges a cause of action for the tort of criminal conversation (adultery) with plaintiff's wife and that this tortious act was committed in Portland, Oregon. It follows that the allegations of this complaint are sufficient to bring this case within the terms of ORS 14.035(1)(b). Defendant's remaining contentions go to the further question of due process.

Defendant's contention that a 'single tortious act' within a state cannot provide a constitutional basis for the exercise of personal jurisdiction where the plaintiff is not a resident of the state, so as to give it no 'special reason' to protect the interests of its own residents from injury by nonresidents, must also be rejected.

It is true that this may have been the original and primary basis relied upon by the courts to support the constitutional application of 'long-arm' statutes in 'single tort' cases. Among other such authorities see McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957); Lewin v. Bock Laundry Machine Co., 42 Misc.2d 599, 249 N.Y.S.2d 49 (1964); and Feathers v. McLucas, 21 A.D.2d 558, 251 N.Y.S.2d 548 (1964). See also Currie, The Growth of the Long Arm: Eight Years of Extended Jurisdiction in Illinois, 1963 U.Ill.L. Forum 533, 540--43, and International Shoe Co. v. Washington, 326 U.S. 310, 318, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

It is now recognized, however, that such statutes may have constitutional application in 'single tort' cases even when both parties are nonresidents. Dart Transit Co. v. Wiggins, 1 Ill.App.2d 126, 117 N.E.2d 314, 319, 320 (1954), and cases cited therein; Elkhart Engineering Corporation v. Dornier Werke, 343 F.2d 861, 868 (5th Cir. 1965); Callahan v. Keystone Fireworks Manufacturing Co., 72 Wash.2d 823, 435 P.2d 626, 635--638 (1967), and Amercoat Corp. v. Reagent Chemical & Research, Inc., 108 N.J.Super. 331, 261 A.2d 380 (1970). Cf. Williams v. Connolly, 227 F.Supp. 539 (D.Minn.1964); Curtis Publishing Company v. Birdsong, 360 F.2d 344 (5th Cir. 1966), and Seymour v. Parke, Davis & Company, 294 F.Supp. 1257 (D.N.H.1969). See also Currie, Supra (at 541--44).

The particular question presented by this case is whether a 'long-arm' statute can have constitutional application in a 'single tort' case between two nonresidents who would have no cause of action under the law of the state of their residence for the act complained of, but for which a remedy is provided under the law of the state where the act was performed.

This requires consideration of the constitutional basis underlying the exercise of jurisdiction under 'long-arm' statutes. In State ex rel. Western Seed Production Corp. v. Campbell, Supra, 252 Or. at 272--275, 442 P.2d 215, we considered that subject, including decisions by the Supreme Court of the United States which provided the legal impetus for such statutes. ¹

In State ex rel. White Lumber Sales, Inc. v. Sulmonetti, 252 Or. 121, 448 P.2d 571 (1968), this court referred again (at p. 124, 448 P.2d at p. 573) to the test as originally stated in International Shoe to the effect that 'the due-process question is whether the alleged facts are such that the forum may exercise jurisdiction without offending traditional notions of fair play and substantial justice.' After recognizing (at p. 125, 448 P.2d at p. 573) 'the difficulty in applying subjective standards like fair play and substantial justice' and after further discussion, we stated the following test for application in such cases:

'From the McGee and Hanson cases, three criteria can be said to define the present outer limits of In personam jurisdiction based on a single act: First, the defendant must purposefully avail himself of the privilege of acting in the forum state or of causing important consequences in that state. Second, the cause of action must arise from the consequences in the forum state of the defendant's activities. Finally, the activities of the defendant or the consequences of those activities must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. Southern Machine Co. v. Mohasco, 401 F.2d 374 (6th Cir. 1968).'

Although the indefiniteness of such criteria was criticized in the dissenting opinion by Mr. Justice (now Chief Justice) O'Connell in that case, it was nevertheless approved by the majority of this court as the best statement of 'criteria' then available for application in such cases in an attempt to make more definite the original test of 'fairness.' ²

This case clearly satisfies the first two of the White 'criteria,' since it appears from the facts, as alleged, that defendant 'purposely availed himself of the privilege of acting' in Oregon and that a cause of action arises from the consequences of such activities, at least in Oregon, as the forum state. The more difficult question is whether such activities and consequences have a 'substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable'--the third 'criterion,' and another subjective test.

The principal contention by defendant--that the 'exercise' of jurisdiction in such cases should be 'handled * * * by judicious use of forum non conveniens'--would, in effect, equate the concept of...