Thiry v. Atlantic Monthly Co.

445 P.2d 1012, 74 Wash. 2d 679, 1968 Wash. LEXIS 806

• Court: Washington Supreme Court
• Decided: October 17, 1968
• Docket: 39845
• Status: Published

Opinions

McGovern, J.

On file in the United States District Court for the Western District of Washington, Northern Division, is a complaint by Paul Thiry, Seattle architect, against the Atlantic Monthly Company. The thrust of the complaint rests in libel resulting from an article published by that company in its February 1967 issue. Mr. Thiry alleges malice.

The record before us, as supplemented by oral argument of counsel, discloses the following: Appellant, hereinafter referred to as “Atlantic,” is a Massachusetts corporation, maintaining its editorial, circulation and advertising offices in Boston. It has no employees, property, shareholders, nor has it been licensed to do business in the state of Washington. Its advertising arm is a Massachusetts corporation and the magazine is printed in New Hampshire.

Additional facts indicate that paid subscriptions in the state of Washington for the Atlantic approximate 5,500 copies monthly. Newsstand sales total about 1,000 copies each month. Each of these totals is in excess of 2 per cent of the magazine’s national circulation in its respective category.

The respondent, hereinafter referred to as “Thiry,” has practiced the profession of architecture in Seattle continuously since 1929. He is a fellow of the American Institute of Architects and makes his home in the city of Seattle.

Service of process on Atlantic was made by service of summons and complaint on one Frank Herbert, treasurer of Atlantic, in the city of Boston, Massachusetts on March 6, 1967.

Atlantic thereupon moved the district court to dismiss the action on the ground that the court had no jurisdiction of the defendant. Thiry countered that jurisdiction was acquired by the service of process previously mentioned under our state “long-arm” statute. RCW 4.28.185. That statute provides, in applicable part, 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;

(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.

Following a hearing on the merits, Atlantic’s motion was denied, whereupon it orally moved that the question of jurisdiction be certified to this court as one of local law.

In granting the oral motion, the federal court, by way of our Federal Court Local Law Certificate Procedure Act, RCW 2.60, certified the following question to us:

Based upon the record in this case, can courts of the state of Washington pursuant to RCW 4.28.185 obtain in personam jurisdiction over an out-of-state publisher who has circulated an alleged libel in the state of Washington?

If the circulation of an alleged libel in the state of Washington, under the circumstances of this case, constitutes either the “commission of a tortious act” or the “transaction of any business” within this state, then the answer to the certified question must be “yes.”

We do answer in the affirmative. In Golden Gate Hop Ranch, Inc. v. Velsicol Chem. Corp., 66 Wn.2d 469, 471, 403 P.2d 351 (1965), 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.” (The statute referred to being our long-arm statute.) There, like here, the claimed damages were suffered within this state as a result of the alleged tortious act occurring without the state. See also Nixon v. Cohn, 62 Wn.2d 987, 385 P.2d 305 (1963). Certainly, if Thiry incurred damages, they were suffered here in the state of his residence and principal place of business. The alleged tortious act thus occurred in this state.

Having concluded that the act occurred in this state, we need not consider the question of whether Atlantic transacted business within this state under the foregoing set of facts and within the meaning of RCW 4.28.185, supra.

In reaching our decision in this matter we are mindful of RCW 2.60.020.

When in the opinion of any federal court before whom a proceeding is pending, it is necessary to ascertain the local law of this state in order to dispose of such proceeding and the local law has not been clearly determined, such federal court may certify to the supreme court for answer the question of local law involved and the supreme court shall render its opinion in answer thereto. (Italics ours.)

We believe that our holding in Golden Gate Hop Ranch, Inc. v. Velsicol Chem. Corp., supra, is crystal clear—so clear in fact that we conclude that the certified question should not have been referred.

The question of the constitutionality of the Federal Court Local Law Certificate Procedure Act, RCW 2.60, has not been considered in this cause. That question was argued to this court in the case of In re Elliott, ante p. 600, 446 P.2d 347 (1968), and determined in the opinion filed therein.

This matter is therefore remanded to the United States District Court for the Western District of Washington, Northern Division, with the foregoing answer to its certified question.

Finley, C. J., Hill, Rosellini, Hunter, Hamilton, and Neill, JJ., concur.