276 A.2d 904 | Conn. Super. Ct. | 1971
In this case the defendant, appearing specially, has filed a plea in abatement challenging the jurisdiction of this court over the defendant. The plaintiff filed a denial of the allegations therein set forth, and the court held a hearing in which testimony was taken.
Hatton, a friend of the plaintiff, testified that he was attending a convention at a hotel in New York and sent out for the purchase of a case of champagne. The champagne delivered was distributed by the defendant, the Monarch Wine Company. Hatton *173 took three bottles of this champagne back to Connecticut where he gave the plaintiff, as a gift at Christmas 1967, one bottle which was asserted to be in the same condition as when purchased. The plaintiff claims that this bottle, received as a Christmas gift, exploded in Connecticut, causing injury to an eye.
The defendant offered as an exhibit at the hearing a duly certified copy, from the office of the secretary of state of Connecticut, attesting that the defendant was not authorized to transact business in Connecticut at any time. The plaintiff's complaint makes no allegations that the defendant conducted any business in this state.
The memorandum of law submitted by the plaintiff advances the claim that the basis for jurisdiction in this court lies in General Statutes § 33-411 (c)(4). This portion of § 33-411, which the plaintiff claims to be controlling of the issue, provides that a foreign corporation shall be subject to suit in Connecticut by a resident of this state, "whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: . . . (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, whether arising out of misfeasance or nonfeasance." Subsection (c) has remained intact in language since its enactment in 1959. Public Acts 1959, No. 618 § 129.
The plaintiff's memorandum argues merely that "tortious conduct of the defendant occurred within the jurisdiction of Connecticut, and therefore, the service is valid." Cited in support of this claim isSouthern New England Distributing Corporation v.Berkeley Finance Corporation,
A later case decided in the same District Court,Marvel Products, Inc. v. Fantastics, Inc.,
The law relating to the extent of in personam jurisdiction under "long-arm" statutes such as our Connecticut statute, § 33-411, has been undergoing a process of refinement and broadening out. Most of the statutes enacted, including our own, derive from the Illinois statute. Ill. Rev. Stat., c. 110 § 17(1)(b) (1959). That statute provided that a nonresident who, either in person or through an agent, commits "a tortious act within this State" submits to jurisdiction.
Gray v. American Radiator Standard SanitaryCorporation,
It is, therefore, of considerable significance to note that the complaint in the instant matter contains only a minimal allegation, that the defendant supplied the plaintiff and/or his agent with a certain bottle of champagne under a contract to sell said bottle of champagne to be consumed by him, which purpose was known to the defendant.
Many of the "long-arm" statutes rely on the "minimum contacts" test set out in the leading case of International Shoe Co. v. Washington,
Going to the crux of the instant issue, reference must be made to certain decisions of the New York courts dealing with this same question. The companion *177
cases of Feathers v. McLucas and Singer v.Walker,
In the Feathers case, the court refused to accept the holding of the Illinois court in Gray v. Americanradiator Standard Sanitary Corporation,
To fill the jurisdictional void pointed up by theFeathers and Singer cases, a new subdivision was added to the New York long-arm statute. N.Y. Sess. Laws 1966, c. 590. Subdivision (a)(3) of § 302, effective September 1, 1966, now provides that personal jurisdiction over any nondomiciliary may be had where a nondomiciliary "commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce."
Weinstein, Korn Miller, New York Civil Practice ¶ 302.10a, discusses at some length the legal effects brought about by the addition of § 302(a) (3), emphasizing that the added section now permits the New York courts to take in personam jurisdiction *179 where a tortious act committed without the state comes within the provisions set out in subsections (i) and (ii).
A 1968 case in the United States Court of Appeals for the second circuit, Friedr. Zoellner (New York)Corporation v. Tex Metals Co.,
The plaintiff relies solely on the language of General statutes § 33-411 (c)(4), contending that the tortious conduct of the defendant occurred within the jurisdiction of Connecticut and therefore the service is valid. Southern New England DistributingCorporation v. Berkeley Finance Corporation,
Based on the authorities above discussed, this court must reach the conclusion that the tortious act charged against the defendant was committed, if at all, in New York. And since no allegation is even made in the complaint that the defendant transacts *180 any business whatever in Connecticut, this court can find no basis upon which it can subject the defendant to the jurisdiction of a Connecticut court.
Accordingly, the defendant's plea in abatement is sustained.