Summary
In Coe Payne Company v. Wood-Mosaic Corporation, 125 Ga. App. 845, 189 S.E.2d 459 (1972) the Georgia Court of Appeals considered the applicability of subsection (c) to certain activities which took place prior to the amendment by the legislature which added subsection (c). It held that subsection (c) could not be applied retroactively. It further held that subsection (b) did not cover extraterritorial tortious conduct causing injury in Georgia.
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46725, 46726, 46740, 46727, 46739.
ARGUED NOVEMBER 2, 1971.
DECIDED MARCH 10, 1972. REHEARING DENIED MARCH 31, 1972.
Action for damages. Fulton Superior Court. Before Judge Alverson.
Powell, Goldstein, Frazer Murphy, Edward E. Dorsey, Stuart E. Eizenstat, for Coe Payne Co.
Smith, Cohen, Ringel, Kohler, Martin Lowe, Robert W. Beynart, Sam F. Lowe, Jr., for Atlanta Flooring Co.
Neely, Freeman Hawkins, Albert H. Parnell, for C. P. Co.
Scott Walters, Jr., for Allen.
Carter, Ansley, Smith, McLendon Quillian, Henry M. Quillian, Jr., N. Forrest Montet, for appellees.
1. The Long-Arm Statute gives jurisdiction over nonresidents against whom are asserted claims which arise out of certain enumerated acts. Since the occurrence of these acts is the determinative factor and the claims in the case sub judice are perforce predicated on events occurring in 1968, we apply the Long-Arm Statute as then in effect.
2. Here reliance was placed on two jurisdictional grounds contained in the Long-Arm Statute: transaction of any business; commission of a tortious act within the state.
(a) Insofar as "transacting any business" is concerned, the basis for the assertion of personal jurisdiction is the location of acts or conduct. Furthermore, the business must have been transacted with the one who is asserting the cause of action or claim.
Where the proof establishes that any business which was transacted took place in a foreign state and the only contacts were shipments made F. O. B. the foreign state, then jurisdiction on this ground must fail.
(b) The language "commits a tortious act within this state" does not encompass the situation where a nonresident corporation commits an act outside the state which causes injury within the state.
ARGUED NOVEMBER 2, 1971 — DECIDED MARCH 10, 1972 — REHEARING DENIED MARCH 31, 1972 — CERT. APPLIED FOR.
These cases arise out of the Atlanta Gas Light Tower fire of December 5, 1968, which caused the deaths of four people and extensive property damage.
The principal parties involved in these cases are herein set out. They are C. P. Company (hereinafter referred to as C. P. Company); Coe Payne Company (hereinafter referred to as Coe Payne); Overall Paint Company (hereinafter referred to as Overall Paint); Wood-Mosaic Corp. (hereinafter referred to as Wood-Mosaic); Atlanta Flooring Company (hereinafter referred to as Atlanta Flooring); Betty C. Allen (hereinafter referred to as Allen).
The action involving appeals 46725, 46726 and 46727 was brought by C. P. Company, the owner of the building, for property damage. Coe Payne, one of three named defendants, filed third-party complaints against Atlanta Flooring, Overall Paint, and Wood-Mosaic, as well as several other parties. Atlanta Flooring, in turn, filed cross claims against Wood-Mosaic and Overall Paint.
The action involving appeals 46739 and 46740 was brought by plaintiff Allen for the wrongful death of her husband, a workman killed in the fire. The defendants included Atlanta Flooring, Overall Paint and Wood-Mosaic. Atlanta Flooring filed cross claims against Wood-Mosaic and Overall Paint.
The pleading and evidence of record showed that one theory as to the cause of the fire involves the possible explosion of vapors given off by an adhesive known as "R-65," which is designed to be used in the laying of parquet flooring. Coe Payne, a flooring contractor, was laying parquet flooring in the Gaslight Tower on the day of the fire, and was using R-65. The adhesive was manufactured by Overall Paint, an Ohio corporation, and distributed by Wood-Mosaic, a Kentucky corporation, for use with its parquet flooring. The adhesive was sold by Wood-Mosaic to Atlanta Flooring, a Fulton County concern, and Atlanta Flooring, in turn, sold the adhesive to Coe Payne.
Both Overall Paint and Wood-Mosaic asserted jurisdictional defenses, claiming that they were not subject to the jurisdiction of Georgia courts under the Georgia Long-Arm Statute, the chosen basis of jurisdiction. After hearing evidence on the motions of those two parties, the trial court sustained their position and dismissed the various pleadings as to Overall Paint and Wood-Mosaic. The appeals are here upon certificates of immediate review.
46726 is the appeal of Atlanta Flooring from the trial court's order dismissing the third-party complaint as to Overall Paint and Wood-Mosaic, and consequently dismissing Atlanta Flooring's cross claims against those third-party defendants. C. P. Company and Coe Payne also appealed from the trial court's order, which appeals bear docket numbers 46727 and 46725 respectively. Those two appeals and the appeal of Atlanta Flooring Company have been consolidated.
46739 is the appeal of Allen from the trial court's order dismissing the complaint as to Overall Paint and Wood-Mosaic. 46740 is the appeal of Atlanta Flooring from this order and the consequent dismissal of its cross claim against the defendants Overall Paint and Wood-Mosaic.
With these facts in mind, we now consider the pleadings. First with regard to the C. P. Company's appeals and then with regard to the Allen appeals.
The action involved in the C. P. Company's appeals commenced with the filing of a complaint by C. P. Company against Coe Payne Company and two other defendants. The short form complaint simply alleged that three defendants negligently caused the fire in question causing plaintiff damage in excess of $110,000.
Coe Payne answered and filed a third-party complaint against Atlanta Flooring, Wood-Mosaic, Overall Paint, and others. The third-party complaint alleged, as to Overall Paint and Wood-Mosaic, that those parties were nonresidents of the State of Georgia, but transacted business and had committed tortious acts within the State of Georgia so as to be subject to the jurisdiction of the courts of Georgia under the Georgia Long-Arm Statute (Ga. L. 1966, p. 343; 1968, p. 1419; 1970, p. 443; Code Ann. § 24-113.1 et seq).
The third-party complaint alleged that the fire was caused when fumes or vapors from "R-65 Wood Block Flooring Adhesive" exploded or caught fire; that the adhesive was manufactured by Overall Paint, had been expressly recommended, specified and sold by Wood-Mosaic, manufacturers of the parquet flooring being installed by Coe Payne and had been sold to Coe Payne by Atlanta Flooring Company; the third-party complaint then alleged liability based upon both negligence and warranty against Overall Paint, Wood-Mosaic, and Atlanta Flooring, and concluded with prayers that Coe Payne have judgment against the third-party defendants for all or part of any sums that might be adjudged against it in favor of plaintiff.
Atlanta Flooring answered the third-party complaint and asserted cross claims against Overall Paint and Wood-Mosaic. In its cross claims, Atlanta Flooring alleged that if in fact the "R-65 Wood Block Flooring Adhesive" contributed to this fire and was sold by Atlanta Flooring to Coe Payne, then Atlanta Flooring had purchased that adhesive from Wood-Mosaic, that the adhesive was manufactured by Overall Paint, that both Overall Paint and Wood-Mosaic had impliedly warranted to Atlanta Flooring that the adhesive was merchantable and fit for the use intended, and that if the adhesive was in fact not merchantable and fit for the use intended, then Overall Paint and Wood-Mosaic would have breached their warranties as described. The cross claim further asserted negligence on the part of both Overall Paint and Wood-Mosaic, and prayed for judgment over against Overall Paint and Wood-Mosaic in the event that any judgment is returned against Atlanta Flooring.
Wood-Mosaic filed its answer to the third-party complaint, wherein it asserted, inter alia, jurisdictional defenses. Wood-Mosaic also filed its motion to dismiss the third-party complaint, asserting insufficiency of process, lack of jurisdiction, and unconstitutionality of the Georgia Long-Arm Statute.
Similarly, Overall Paint filed its answer to the third-party complaint, asserting several jurisdictional defenses. Overall Paint also filed a motion for summary judgment.
Plaintiff C. P. Company then filed an amended complaint wherein it added as parties defendant Atlanta Flooring, Overall Paint, and Wood-Mosaic, as well as certain other parties. Basically, the allegations of the amended complaint repeated the allegations of Coe Payne's third-party complaint.
Atlanta Flooring filed its answer to plaintiff's amended complaint, asserting cross claims against Overall Paint and Wood-Mosaic identical to those contained in its answer to the third-party complaint. Overall Paint filed an answer to plaintiff's amended complaint basically identical with its original answer to the third-party complaint. Similarly, Wood-Mosaic filed an answer to plaintiff's amended complaint paralleling its earlier answer.
Wood-Mosaic subsequently filed, as "third-party defendant and an additional named defendant," a motion for summary judgment for want of jurisdiction. Overall Paint also filed a motion for summary judgment "as a defendant and a third-party defendant." Overall Paint's second motion was identical to its first, simply referring to its new-found status as a defendant as well as a third-party defendant.
The action involving Allen's appeals commenced with the filing of a complaint by plaintiff against Atlanta Flooring, Wood-Mosaic, Overall Paint, and others. The complaint alleged, as to Overall Paint and Wood-Mosaic, that those parties were nonresidents of the State of Georgia, but transacted business and had committed tortious acts within the State of Georgia so as to be subject to the jurisdiction of the courts of Georgia under the Georgia Long-Arm Statute (Ga. L. 1966, p. 343, 1968, p. 1419; 1970, p. 443; Code Ann. § 24-113.1 et seq).
The complaint alleged that the adhesive used in installing floors where plaintiff's husband was working was manufactured by Overall Paint, had been expressly recommended and specified by Wood-Mosaic, manufacturers of the flooring being installed, and had been sold to Coe Payne (a flooring contractor and plaintiff's husband's employer) by Atlanta Flooring Company. The complaint then alleged liability based upon the negligence of all defendants.
Atlanta Flooring answered the complaint and asserted cross claims against Overall Paint and Wood-Mosaic. In its cross claims, Atlanta Flooring alleged that if in fact the adhesive contributed to this fire and was sold by Atlanta Flooring to Coe Payne, then Atlanta Flooring had purchased that adhesive from Wood-Mosaic, that the adhesive was manufactured by Overall Paint, that both Overall Paint and Wood-Mosaic had impliedly warranted to Atlanta Flooring that the adhesive was merchantable and fit for the use intended, and that if the adhesive was in fact not merchantable and fit for the use intended, then Overall Paint and Wood-Mosaic would have breached their warranties as described. The cross claim further asserted negligence on the part of both Overall Paint and Wood-Mosaic, and prayed for judgment over against Overall Paint and Wood-Mosaic in the event that any judgment is returned against Atlanta Flooring.
Wood-Mosaic filed its answer to the complaint, wherein it asserted various jurisdictional defenses. Wood-Mosaic also filed its motion to dismiss the complaint, asserting insufficiency of process, lack of jurisdiction, and unconstitutionality of the Georgia Long-Arm Statute.
Similarly, Overall Paint filed its answer to the complaint, asserting several jurisdictional defenses. Overall Paint also filed a motion for summary judgment. Wood-Mosaic subsequently filed a motion for summary judgment for want of jurisdiction.
In both sets of appeals prior to the hearing of the jurisdictional motions by the court, the parties entered into a stipulation incorporating into the record of this case certain interrogatories and answers filed in Lutz v. Coe Payne Company et al., Case No. B-50266, Superior Court of Fulton County, which discovery was germane to the jurisdictional question before the court.
The proof considered by the court in both the Allen case and the C. P. Company case consisted of the affidavits of Martin A. Davis and Joseph Mann, interrogatory answers, and interrogatory answers stipulated from the Lutz record.
The affidavit of Martin A. Davis showed that he is Secretary-Treasurer and Chief Executive Officer of Overall Paint, and therefore familiar with the means and methods whereby Overall Paint conducts its business; that Overall Paint has never had any representatives in the State of Georgia, has never maintained an office or place of doing business in the State of Georgia, has never had an agent or employee located in the State of Georgia, and has never owned any real or personal property located within the State of Georgia; that Overall Paint has never sent a representative into the State of Georgia for the purpose of soliciting business, and does not solicit orders within the State of Georgia; that Overall Paint is an Ohio corporation and is not and has never been authorized to transact business in the State of Georgia; that Overall Paint does not do business within the Stage of Georgia, and has not committed a tortious act within the State of Georgia; that Overall Paint has never produced or manufactured any product in the State of Georgia.
Joseph Mann submitted two affidavits. His affidavit dated January 20, 1971, showed that he is Secretary-Treasurer of Wood-Mosaic and familiar with its business; that Wood-Mosaic never had any representatives or agents in the State of Georgia, has never been domesticated in the State of Georgia, has never maintained a place of doing business in the State of Georgia, and has never had an agent designated for service of process or an agent upon whom service could be perfected in the State of Georgia; that Wood-Mosaic has never maintained an office or place of doing business in the State of Georgia, has never had an agent or employee located in the State of Georgia, and has never owned any real or personal property in the State of Georgia; that Wood-Mosaic is a Kentucky corporation which has never been authorized to do business in the State of Georgia; that Wood-Mosaic does not do business within the State of Georgia, has not committed a tortious act within the State of Georgia, and has never produced or manufactured any product within the State of Georgia.
With reference to the business of Wood-Mosaic, Mr. Mann testified in his affidavit that Wood-Mosaic manufactures wood flooring, which flooring is sold in Georgia "by order from the customer which orders are accepted and filled by Wood-Mosaic Corporation in Kentucky, and the product is shipped from Kentucky upon invoice to the customer which invoices are paid by remittance paid to Kentucky." The affidavit further shows that the R-65 adhesive was sold to customers along with orders for wood flooring, and that "this adhesive and the wood flooring was sold in the State of Georgia by orders received from the customer which were accepted and filled by Wood-Mosaic in Kentucky, and the wood flooring and adhesive was shipped F.O.B. our factory in Louisville, Kentucky upon invoice to the customer," which invoices were paid by remittance to Kentucky.
The second affidavit of Joseph Mann, dated January 27, 1971, showed that the "customers" referred to in his prior affidavit did not include Coe Payne, C. P. Company, James A. Allen, or Billy D. Palmer; that it purchased R-65 Wood Adhesive from Overall Paint Company, and sold its own wood flooring and the R-65 adhesive to Atlanta Flooring in Georgia; that Wood-Mosaic did not at any time sell flooring or R-65 adhesive to Coe Payne Company, C. P. Company, James A. Allen or Billy D. Palmer, and that Wood-Mosaic had no knowledge of what happened to its wood flooring or the adhesive after they had been received by Atlanta Flooring Company.
Mr. Mann's second affidavit also identified as an exhibit a copy of the installation and maintenance instruction manual supplied by Wood-Mosaic with its flooring. The manual generally recommended the use of R-65 adhesive or Fastac No. 47. It specified the use of R-65 "only" with the Hadden Hall pattern parquet flooring being laid by Coe Payne.
Stipulated evidence brought over from the Lutz record included the following:
Wood-Mosaic's answers to Coe Payne's first interrogatories showed that Wood-Mosaic, during the past five years, had shipped flooring on invoice to various wholesale distributors within the State of Georgia; Wood-Mosaic denied that these invoiced shipments constituted contracts. Wood-Mosaic denied having any records of the value of its products which were ultimately sold to customers in Fulton County or elsewhere in Georgia. It does not prohibit the resale of its product in Fulton County or elsewhere in Georgia. Wood-Mosaic admitted that it shipped or delivered its products, including the flooring and adhesive involved in this fire, to locations within Fulton County and elsewhere in Georgia, but denied that it "distributed" or "recommended" its products. It denied having records showing the volume of deliveries so made. Wood-Mosaic admitted shipping miscellaneous flooring products to Atlanta Flooring during the past five years in a total dollar amount of approximately $40,000, but denied that these shipments constituted agreements or contracts with Atlanta Flooring, and denied knowledge of the ultimate consumer of these products. Wood-Mosaic's flooring is manufactured in Kentucky. Wood-Mosaic does not know the values of the R-65 adhesive it purchased from Overall Paint during the past five years, but does know that the values for the past two years total $525.60. Wood-Mosaic has not shipped any R-65 since January 1, 1970.
Wood-Mosaic's answers to Coe Payne's second interrogatories contained Wood-Mosaic's denial that it sold, distributed, or otherwise marketed R-65 in Fulton County or Georgia, but its admission that it filled orders received from Georgia customers and shipped R-65 F.O.B. in the total amount of 957 gallons and total value of $2,288 for the years 1965 through 1968. In answer to a query as to whether Wood-Mosaic recommended the use of R-65 adhesive, Wood-Mosaic referred to its installation manual; that manual requires the use of R-65 with the parquet flooring in question.
Overall Paint's answers to Coe Payne's first interrogatories showed that Overall Paint sold roof coating to two Georgia concerns (not parties to this litigation) in 1968 and 1969 resulting in shipments from Overall Paint in Ohio to its customers in Georgia. Nonetheless, Overall Paint denied transacting business in the State of Georgia.
Overall Paint's answers to Coe Payne's second interrogatories showed that the gross dollar volume of its direct sales to Georgia customers in 1968 and 1969 was $14,100. Overall Paint's answers showed that Wood-Mosaic (Louisville, Kentucky) was its sole customer, that some $44,000 worth of R-65 had been sold by Overall Paint to Wood-Mosaic during the years 1966-1968, and that Wood-Mosaic Corporation "was the exclusive distributor of R-65 adhesives."
Atlanta Flooring's answers to Coe Payne's interrogatories showed that during the years 1965 through 1968 it purchased R-65 adhesive from Wood-Mosaic in the amount of 957 gallons and in the dollar value of $2,288. In addition, Wood-Mosaic sold in excess of $98,000 worth of miscellaneous flooring products to Atlanta Flooring during the years 1965 through 1970.
1. In J. C. Penney Co. v. Malouf Co., 125 Ga. App. 832, we pointed out the following principles of law applicable to a case of this sort. The Long-Arm Statute involves substantive rights and is therefore not to be applied retroactively. Bauer International Corp. v. Cagles, Inc., 225 Ga. 684 ( 171 S.E.2d 314). The statute gives jurisdiction as to causes of action which arise from certain enumerated acts. Regardless of when the right to a claim accrued within the meaning of the statute of limitation, the jurisdictional right under the Long-Arm Statute is derivative of the occurrence of one of the enumerated acts. Thus, the time when one of the enumerated acts occurs is the time to be used in determining what provision of the Long-Arm Statute as amended should be applied.
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.
2. 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 F. Supp. 147, 152; Griffin v. Air South, 324 F. Supp. 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 F. Supp. 201, 207; John Deere Co. v. Lindsey Landclearing Co., 122 Ga. App. 827, 831 ( 178 S.E.2d 917). Be that as it may, these appeals arise in substance from the grant of summary judgments for Overall Paint and Wood-Mosaic. As movants the burden was upon them to demonstrate that no basis for jurisdiction under the Long-Arm Statute existed. Thus, we consider two basic grounds for jurisdiction as to each of these two foreign corporations.
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., 115 Ga. App. 52 ( 153 S.E.2d 650). In 1968, the Georgia Business Corporation Code contained a provision that a foreign corporation shall not be considered to be transacting business in this state, for the purposes of qualification under this Code, solely by reason of carrying on in this state any one or more of the following activities (one of which was): "Soliciting or procuring orders, whether by mail or through employees or agents or otherwise, where such orders require acceptance without this State before becoming binding contracts, and where such contracts do not involve any local performance other than delivery and installation." Code Ann. § 22-1401 (b) (6) (Ga. L. 1968, pp. 565, 707; 1969, pp. 152, 201). However, the same section further stated: "The provisions of this section shall not be deemed to establish a standard for activities which may subject a foreign corporation to taxation or to service of process under any of the laws of this State." Code Ann. § 22-1401 (c). This leaves us without concrete expression of the legislative intent as to transacting any business.
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 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, 103 Ga. App. 538, 541 ( 119 S.E.2d 813); Sterling Materials Co. v. McKinley, 218 Ga. 574 (2) ( 129 S.E.2d 770).
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, 121 Ga. App. 150 ( 173 S.E.2d 101). See also Marival v. Planes, 302 F. Supp. 201.
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, 124 Ga. App. 694, 697 ( 185 S.E.2d 557); Smith v. Piper Aircraft Corp., 425 F.2d 823, 825.
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 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 complaints 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 Act. 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, 120 Ga. App. 106 ( 169 S.E.2d 827) (remanded Smith v. O'Neal Steel, Inc., 225 Ga. 778 ( 171 S.E.2d 519), decision on a different ground) and adopt the holdings of the Federal District Courts which have passed on our statute. See e.g., Scott v. Crescent Tool Co., 296 F. Supp. 147, 156, supra; Grey v. Continental Marketing Associates, 315 F. Supp. 826, 829; Griffin v. Air South, 324 F. Supp. 1284, 1290, supra. It is further argued that the amendment of 1970 was adopted by the legislature to show what its purpose or intent as to the statute was prior to that time.
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, 120 Ga. App. 106, supra. The Third Division of the Court of Appeals has recently in Castleberry v. Gold Agency, 124 Ga. App. 694, supra, adopted with approval the reasoning therein. So do we.
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. Jordan, P. J., and Evans, J., concur.