Value Engineering Co. v. Gisell, 52641

• Decision Date: 28 September 1976
• Docket Number: No. 1,No. 52641,52641,1
• Citation: 140 Ga.App. 44,230 S.E.2d 29
• Court: Georgia Court of Appeals
• Parties: VALUE ENGINEERING COMPANY v. Gail GISELL et al

Page 29

230 S.E.2d 29

140 Ga.App. 44

VALUE ENGINEERING COMPANY v. Gail GISELL et al.

No. 52641.

Court of Appeals of Georgia, Division No. 1.

Sept. 28, 1976.

Rehearing Denied Oct. 20, 1976.

N. Forrest Montet, Atlanta, for appellant.

M. C. Mykel, Powell, Goldstein, Frazer & Murphy, Daryll Love, Edward E. Dorsey, Atlanta, for appellees.

CLARK, Judge.

How far does jurisdiction extend under Georgia's Long Arm Statute? That question confronts us in this case of first impression under facts appropriate to a Twenty-first Century science fiction story.

The instant case involves a plaintiff passenger who sued Delta Air Lines, Inc. and Value Engineering Company as co-defendants. She alleges she was unnecessarily exposed to radioactive contamination which caused her to suffer physical and genetic injury with great mental anguish. Allegedly, this was due to leakage from a shipment of radioactive material packaged and consigned by Value and transported by Delta on the plane carrying her as a passenger. The record states that 'The sealed source was a solid small pellet, about the size of a ballpoint pen point in a stainless steel capsule about one-half inch long, the size of a pencil.'

Value Engineering Co., a Virginia corporation is a service-oriented company, not engaged in manufacturing and with no business dealings in Georgia. On April 5, 1974, it delivered to Delta's Washington freight office a shipment of radioactive material for air transport to Gamma Industries, Inc. in Baton Rouge, Louisiana. The shipment was radioactive iridium 192 placed in a container and inserted into an overpack consisting of a metal drum and a wooden form within the drum to prevent shifting during transit. At the time of delivery shipper executed the required tariff certification for Delta and accepted a uniform air-bill which stated the shipment's routing and destination. Value had no control over such routing. This uniform air-bill showed the shipment originated in Washington and was destined for Baton Rouge via Atlanta.

Delta Flight 311 left Washington that evening at 7:20 p.m. for Atlanta with plaintiff and 118 other passengers aboard and with Value's radioactive shipment in its cargo bin. When the flight arrived in Atlanta that same evening, the shipment was unloaded and delivered to the air freight transfer point for delivery to a Delta aircraft outbound for Baton Rouge. This plane had 38 passengers and the radioactive shipment on board. It reached its destination one hour and twenty minutes later. There the shipment was unloaded and stored for pick-up by the consignee. Two days later Gamma Industries, Inc. received the shipment at its facility and noticed high radiation levels.

Delta cross-claimed against Value as codefendant and also filed a third-party complaint alleging jurisdiction over Value under our Long Arm Statute.

Value took appropriate procedural steps to contest the jurisdiction of the Superior Court of Fulton County. The trial court ruled adversely to Value but granted an interlocutory review certificate in which our court concurred. The essence of its jurisdictional challenge is that the radioactive material was delivered to Delta for shipment to Louisiana and not to Georgia and that it had no control over when or where the flight might land or stop. Based on this, it argues that any contact between itself and this state is 'fortuitous,' is not based upon any 'purposeful activity' here and thus should not be the basis for an exercise of personal jurisdiction over it in Georgia courts.

1. Appellant first urges us to accept the proposition that jurisdiction must be based on the language of Code Ann. § 24-113.1(c) rather than the more liberal requirements of subsection (b) of the statute. It is clear, however, that the General Assembly adopted subsection (c) of the Long-Arm Statute not to restrict the applicability of subsection (b) but rather to liberalize the interpretation that this Court had made of 'tortious act or omission within this State.' Since the adoption of subsection (c) the Supreme Court has reversed this court's previously limited interpretation of subsection (b) and extended the exercise of jurisdiction over non-resident parties 'to the maximum extent permitted by procedural due process.' Coe & Payne Co. v. Wood Mosaic Corp., 230 Ga. 58, 60, 195 S.E.2d 399, 401. Appellant's contention was rejected in a 1975 decision by the Northern District of Georgia in Thornton v. Toyota Motor Sales U.S.A., GA. 397 F.SUPP. 476, 480. We agree with that rejection. In fact, this court indicated in Shellenberger v. Tanner, 138 Ga.App. 399, 406, 227 S.E.2d 266, 273, that the contrary and opposite argument would be correct.

2. '. . . (J)urisdiction over a nonresident defendant may be exercised by virtue of Code Ann. § 24-113.1(b) when: (1) The nonresident has purposefully done some act or consummated some transaction with or in the forum (but the actual act or omission resulting in the injury here need not have occurred in this state). The defendant need not be physically within the forum when this act or transaction occurs and a single such...