The opinion of the court was delivered by: POWELL
This action was originally commenced by the plaintiff Richard Teague against certain defendants on March 11, 1959. An amended complaint was filed January 19, 1960, adding additional defendants, Helen Damascus, a widow, who was a resident of the State of Oregon, and Peter D. Lambros and Demitra Lambros, husband and wife, who were residents of the State of Montana.
In the allegations of the amended complaint the plaintiff asserts that all of the defendants, including the defendants added in the amended complaint, were and are joint owners and operators of the real property and bathing resort involved in this action, located in Spokane County, Washington, and the owners and operators of property commonly known as Liberty Lake Park.
The plaintiff alleges his residence to be in the State of Texas. The remaining defendants are residents of the State of Washington. thus placing the jurisdiction of the action in the District Court here. There are two questions, however, for determination. One of them is determined in this opinion and the other one awaits a further determination.
The defendants, Helen Damascus and Peter D. Lambros and Demitra Lambros, his wife, have moved the Court for a dismissal of this action and to quash service pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., on the grounds that the attempted service of process on said defendants was without authority of law, that the defendants have not been properly served with process, and being nonresidents of the State of Washington they could not be reached with process from this Court.
Rule 4(d)(7) of Federal Rules of Civil Procedure provides as follows:
Rule 4 '(d) Summons: Personal Service. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:
'(7) Upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule, it is also sufficient if the summons and complaint are served in the manner prescribed by any statute of the United States or in the manner prescribed by the law of the state in which the service is made for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state.'
The plaintiff claims lawful service on the defendants made under RCW 4.28.185. This statute is also referred to as Chapter 131, Laws of 1959, passed by the Washington State Legislature with an effective date of June 11, 1959.
That statute provides in substance that any person, whether or not a citizen or resident of the State of Washington, submits to the jurisdiction of the courts of the State of Washington as to any cause of action arising from the doing of certain enumerated acts. The acts enumerated include transaction of any business within the State of Washington, or commission of a tortious act therein, or the ownership, use or possession of any property within the State. The act further provides that service of process upon any person who is subject to the jurisdiction of the Court may be made by personally serving the defendant outside of the State of Washington with the same force and effect as though personally served within the state.
The act complained of against the defendants occurred on August 17, 1958, at which time the defendants are alleged to have operated a bathing resort known as Liberty Lake Park, and to have negligently maintained it to the injury and detriment of the plaintiff. The statute above referred to was passed by the Washington State Legislature and became effective on June 11, 1959, or almost ten months after the negligent acts alleged in plaintiff's amended complaint.
The question therefore is whether service pursuant to RCW 4.28.185 does constitute service within the State of Washington, and whether that statute can be given retroactive effect.
Counsel for the defendant argues, in support of his motion to dismiss, that the rationale of the case of Hammack v. Monroe Street Lumber Co., Wash., 339 P.2d 684, 688, should control. In that case it was held that an amendment to the Workmen's Compensation Statutes (Laws 1939, c. 41, § 2; Laws 1957, c. 70, § 23) permitting an injured workman to elect whether he may sue a third party tortfeasor, who is also under the Act, or makes claim under the Workman's Compensation laws, was held not to be retroactive. In answer to the contention that the statute was merely one of remedy, the court said, quoting an earlier case ( Jacobus v. Colgate, 217 N.Y. 235, 111 N.E. 837):
'The general rule is that statutes are to be construed as prospective only. * * * It takes a clear expression of the legislative purpose to justify a retroactive application. * * * Changes of procedure, i.e., of the form of remedies, are said to constitute an exception * * *, but that exception does not reach a case where before the statute there was no remedy whatever. * * * To supply a remedy where previously there was none of any kind, is to create a right of action.'
Counsel for the defendants in their able brief set forth a number of cases which are to the effect that statutes speak prospectively and not retroactively. This rule has been applied in construing the ...