In
J. C. Penney Co. v. Malouf Co.,
It is evident whether the relief sought is contribution or indemnity or based on implied warranty or negligence, that the right to such relief is predicated on activities which culminated in the occurrence of December 5, 1968. If there was a cause of action for negligence it was based on that occurrence, if there was a right to contribution it is derived from that occurrence, if there is an implied warranty or right to indemnity it was with respect to goods shipped into the state which allegedly caused the injury on that date.
Subsequent activities sufficient to constitute transacting business in this state would not furnish a jurisdictional basis. Moreover, the 1970 amendment has reference only to the commission of acts after its effective date, July 1, 1970. Code Ann. § 102-111 (Ga. L. 1968, pp. 1364, 1365; 1969, p. 7.) Thus, the original 1966 Long-Arm Statute and the 1968 amendment thereto are relevant but the 1970 amendment' has no application to the facts.
In this case there is no issuable question with regard to ownership, use or possession of real property. Jurisdiction is either predicated on the transaction of any business or the commission of a tortious act.
Federal District Courts have held that transacting any business refers to actions sounding in contract. Scott v. Crescent Tool Co., 296 FSupp. 147, 152; Griffin v. Air South, 324 FSupp. 1284, 1289. Doubt exists as to whether an action for breach of warranty is primarily tortious or contractual in nature. See Prosser on Torts (3d Ed.) §95, pp. 651-652; Marival v. Planes, 302 FSupp. 201, 207;
John Deere Co. v. Lindsey Landclearing Co.,
Transacting Any Business.
The term "transacting any business” was in 1966 novel to the State of Georgia. The use of such terminology indicates an intent by the legislature to make some change from the traditional concept of "doing business” which was well defined at the time of the enactment of the Long-Arm Statute. See
Buckhead Doctors’ Bldg. v. Oxford Finance Cos.,
A thorough review of the foreign authorities’ treatment of the term "transacting any business” has apprised us of the many complexities and problems involved, if not necessarily all the solutions thereto. Even Illinois which has been extremely liberal in its application of the Long-Arm Statute has required that there be certain minimum contacts with the forum state. "The determinative question is the presence within Illinois of the nonresident in connection with the transaction which ultimately gives rise to the litigation or the performance by the nonresident or his agent *857 in Illinois of some act connected therewith.” Anno., 27 ALR3d 397, 441.
When a court is examining the circumstances of a case to ascertain whether one is transacting any business, Weissman, in his article entitled "The Georgia Long Arm Statute,” sets a sound standard to follow. He states: "The basis for the assertion of personal jurisdiction is the location of acts or conduct. The substantial consequences of the acts or conduct are not relevant to determine jurisdiction.” 4 GSBJ 13, 26.
Even the provisions in the Georgia Business Corporation Code, while expressly not controlling, at least serve as a guide in determining whether a party was transacting any business. Moreover, the use of the word "any” would seem to indicate that quantity of business, or the lack thereof, was not a decisive factor. This is unlike the situation considered in previous decisions dealing with isolated transactions.
Allied Finance Co. v. Prosser,
Thus, as a general rule, transacting business would require some minimum contacts within the state which should be decided on the individual circumstances of the case. We would point out that it would seem to encompass more than mail orders which require acceptance in a nonresident state. Furthermore, transacting business would not be involved where the sole local performance was delivery of items ordered to this state. See in this connection,
Carey v. Linares,
A very important principle should be reiterated: the Long-Arm Statute requires that the nonresident’s liability arise out of the business transacted.
Castleberry v. Gold Agency,
The proof showed that Overall Paint’s only direct contact with Georgia consisted of two sales it made in 1968, and 1969 in the amount of $14,100. These shipments neither involved the products in question nor any of the parties *858 involved in these appeals. All of Overall Paint’s transactions as to the allegedly hazardous product R-65 were conducted outside the State of Georgia. Overall Paint had no contacts with the State of Georgia, no agents or sales representatives in Georgia, and did not solicit orders in Georgia. The proof offered was sufficient to establish that Overall Paint was not transacting any business in Georgia.
Wood-Mosaic shipped miscellaneous flooring products to Atlanta Flooring during the past five years in the total amount of approximately $40,000 according to it (or in excess of $98,000 according to Atlanta Flooring); it filled orders received from its Georgia customer (Atlanta Flooring) and shipped R-65 F.O.B. Louisville, Kentucky, in the total amount of 957 gallons for a total value of $2,288 for the years 1965 through 1968. (192 gallons and 526 dollars attributed to 1968.) However, Wood-Mosaic showed as to R-65 that the material was sold by orders received from the customer which were accepted and filled in Kentucky, shipped F.O.B. Louisville, Kentucky, and paid by remittance in Kentucky. There is proof showing that Wood-Mosaic had no contacts in the State of Georgia, to wit, no office, no agents, no contracts and no soliciting of business in this state. That being true, Wood-Mosaic introduced proof sufficient to establish that it was not transacting any business in Georgia.
If the plaintiff, third-party plaintiffs, or cross complainants had any further proof tending to establish a jurisdictional basis on this ground, they should have come forward with it and must be charged with the failure to do so.
Commission of A Tortious Act.
We now reach the question: is the commission of a tortious act outside the state which caused the injury within the state a "tortious act” under Section 1 (b) of the Long-Arm Statute? Able counsel for the appellants urge that we reject the rationale of
O’Neal Steel, Inc. v. Smith,
In regard to this last point, it seems clear that, if anything, the Act of the legislature was intended to change the existing situation and cover an area that was not previously included in the statute.
Insofar as application of the Long-Arm Statute to a situation where there is a tortious act outside the state causing injury within the state, we see no sound basis for departing from the reasoning in
O’Neal Steel, Inc. v. Smith,
We reject the argument that a recommendation of R-65 in Wood-Mosaic’s installation manual accompanying the product, which contained a warning that such substance was inflammable, amounted to the commission of a tortious act in this State.
The proof offered established that Overall Paint and Wood-Mosaic neither transacted any business nor committed a tortious act within this state. Hence, the trial judge did not err in the various rulings which dismissed these two parties from the case for lack of jurisdiction.
Judgments affirmed.