Nixon v. Cohn
| Decision Date | 26 September 1963 |
| Docket Number | No. 36909,36909 |
| Citation | 62 Wn.2d 987,385 P.2d 305 |
| Court | Washington Supreme Court |
| Parties | Denny NIXON and Helen Nixon, husband and wife, and Pamela Nixon, a minor by her Guardian and Litem, John Nixon, Appellants, v. Bobby COHN, John Doe and Raymond Roe, a partnership doing business as Bobby Cohn Associates, Frank Hrubetz & Co., Inc., a corporation, Gayway 21 Rides, Inc., a corporation, Gayway 21 Leasing Corporation, Century 21 Exposition, Inc., a corporation, Defendants, Frank Hrubetz & Co., Inc., a corporation, Respondent. |
Sullivan, Redman & Winsor, Seattle, for appellants.
Elvidge, Watt, Veblen & Tewell, Seattle, for respondent.
Skeel, McKelvy, Henke, Evenson & Uhlmann, Seattle, amicus curiae.
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This is an action for damages for personal injuries sustained by the appellants, Helen Nixon and the child, Pamela Nixon, (hereinafter referred to as the plaintiffs), when they were hurled out of their seats while riding on the 'Meteor,' a giant amusement machine, at the Century 21 Exposition in Seattle, on May 19, 1962. Suit was instituted in the Superior Court of King County against the defendants Cohn and others (hereinafter referred to as Cohn), the owners and operators of the machine, against the defendants Gayway 21 Rides, Inc., Gayway 21 Leasing Corporation, and Century 21 Exposition, Inc., as parties who had the right of control over the operation of the machine, and against respondent Frank Hrubetz & Co. Inc., (hereinafter referred to as the respondent), who manufactured the machine.
The amended complaint alleged, inter alia, that the machine was inherently dangerous and that the respondent was negligent and guilty of breach of warranty in the design, manufacture, and assembly of the machine.
Service was effected on all of the defendants, except the respondent, by personal service, within King County, Washington, and on respondent by personal delivery of the summons and complaint on Frank Hrubetz, president of the corporation, May 31, 1962, at Salem, Oregon, where respondent operates its manufacturing plant. Respondent could not be served with process within the State of Washington.
The respondent filed a special appearance and moved to quash service of summons and to dismiss the action against it, on the grounds of lack of jurisdiction of the courts of the State of Washington over the respondent corporation. The motion was supported by an affidavit of Frank Hrubetz. The appellants filed affidavits by John J. Sullivan, Bobby Cohn and Jack R. Morningstar in opposition to respondent's motion.
The affidavits and the pleadings show the facts relative to the matter at issue to be:
The respondent is an Oregon corporation engaged in the manufacture of amusement rides at Salem, Oregon. Shortly before the opening of the Century 21 Exposition in Seattle, respondent manfactured and sold the amusement machine to the defendant, Cohn. This machine consisted of three large turntables designed to rotate very rapidly and could carry more than 50 passengers when fully loaded.
The respondent knew that the machine was to be used at the exposition and installed lighting fixtures designed especially for use on the machine at the fair. The machine was mounted on a trailer owned by Cohn and was delivered to Cohn at the respondent's plant in Oregon. Before the accident, the president of the respondent company personally went to Seattle, visited the machine on the fair grounds, and discussed the lighting equipment on the machine with Cohn's manager. The respondent was also available to service and repair the machine at any time. The machine was not sold for cash, and respondent retained a property interest in the machine after it was installed on the fair grounds. The dates of the contract payments to be made during the year 1962 corresponded to the months in which the machine would be in operation and earning income at the fair. Prior to the accident in May, 1962, the respondent transferred its vendor's interest in the machine to another party.
On May 19, 1962, three passengers were hurled out of the machine while it was in operation at the fair grounds. Two of these passengers are the plaintiffs in this action.
On the day following the accident, the president of the respondent corporation went personally to Seattle to inspect the machine. One week later, one of respondent's employees went to Seattle and altered and repaired the gates on each of the 18 seats on the machine, at respondent's expense.
The respondent's affidavit admits the above facts, but states that respondent does no business whatever in Washington, has no agent or employee in Washington, owns no property in Washington, has no office or telephone listing in Washington, and at no time relevant to this case has respondent sold or solicited the sale of any goods or merchandise within the State of Washington.
After a hearing on the motion to quash and filing a memorandum opinion, on December 5, 1962, the trial court entered an order quashing the service on the grounds that the court lacked jurisdiction over the respondent.
The questions for review are: Was the ruling by the trial court consistent with RCW 4.28.180 and RCW 4.28.185, which provides for personal service out of the state; and, if jurisdiction is asserted, would it meet the requirements of the due process clauses of the federal and state constitutions as set forth in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057?
RCW 4.28.180, the section of the statute under which out-of-state service is permitted, reads as follows:
RCW 4.28.185 provides 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;
'(c) The ownership, use, or possession of any property whether real or personal situated in this state;
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'(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.
'(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.'
The power of a state to acquire jurisdiction over nonresidents has been before the courts in many aspects for many years. In the famous case of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, it was established that the due process clause of the fourteenth amendment to the United States Constitution is violated where a court renders a personal judgment against a nonresident individual defendant without having jurisdiction over him and that, as a matter of due process, it cannot acquire such jurisdiction merely by serving process upon him outside the forum or by publication.
Since then, the concept of state jurisdiction over nonresidents has been greatly expanded. This development is well summarized in the words of Chief Justice Stone in International Shoe Co. v. Washington, supra, where he said [326 U.S. p. 316, 66 S.Ct. p. 158, 90 L.Ed. 95]:
'Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant's person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24 .L.Ed. 565. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' [Citing cases.]
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The appellants contend that there were Washington 'minimum contacts' chargeable against the respondent, so that the maintenance of suit in this state does not 'offened traditional notions of fair play and substantial justice' as set forth in the case of International Shoe Co. v. Washington, supra, in the following...
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