dissenting.
The first question presented here is: When a voluntary act or acts of sexual intercourse between two *162unmarried consenting adults, committed within this state, results in the birth and residency of a child within this state, and the putative father has failed to support that child, has the putative father committed a tortious act or acts within this state under ORS 14.035? As the majority points out, this question was expressly left open in Oregon in the recent case of State ex rel Poole v. Dorroh, 271 Or 410, 532 P2d 794 (1975).
If the answer to that question is in the affirmative, as I believe it should be, the resolution of this controversy requires consideration of whether under the rule announced in Myers v. Brickwedel, 259 Or 457, 486 P2d 1286 (1971), the acts alleged provided " 'a substantial enough connection’ with the state of Oregon 'to make exercise of jurisdiction over [a nonresident defendant] reasonable.’ ” 259 Or at 467.
1 Restatement (Second) of Torts § 6 (1965) defines tortious conduct as follows:
"The word 'tortious’ is used throughout the Restatement of this Subject to denote the fact that conduct whether of act or omission is of such a character as to subject the actor to liability under the principles of the law of Torts.
"Comment:
"c. The word 'tortious’ is appropriate to describe not only an act which is intended to cause an invasion of an interest legally protected against intentional invasion, or conduct which is negligent as creating an unreasonable risk of invasion of such an interest, but also conduct which is carried on at the risk that the actor shall be subject to liability for harm caused thereby, although no such harm is intended and the harm cannot be prevented by any precautions or care which is practicable to require.” (Emphasis supplied).
Prosser, Torts 1, 2, § 1 (3d ed 1964), points out:
"A really satisfactory definition of a tort has yet to be found. The numerous attempts which have been made to define the term have succeeded only in achieving language so broad that it includes other matters than torts, *163or else so narrow that it leaves out some torts themselves.* * *” (Footnotes omitted.)
He then proceeds to demonstrate by reference to many authorities and examples, including those arising from both contractual1 and quasi-contractual relations cognizable as torts, the bases for his statement, and summarizes in part as follows:
«* * * [I]t has been said that torts consist of the breach of duties fixed and imposed upon the parties by the law itself, without regard to their consent to assume them, or their efforts to evade them. * * *
««H« H« H* H* H«
"* * * Liability in tort is based upon the relations of men with one another; and those relations may arise generally, with large groups or classes of persons, or singly, with an individual.
««Hí H« H« H* H«
"The law of torts, then, is concerned with the allocation of losses arising out of human activities; and since these cover a wide scope, so does this branch of the law.
"In so broad a field, where so many different types of individual interests are involved, and they may be invaded by so many kinds of conduct, it is not easy to find any single guiding principle which determines when such compensation is to be paid. So far as there is one, it would seem that liability must be based upon conduct which is socially unreasonable. The common thread woven into all torts is the idea of unreasonable interference with the interests of others. In many cases, of course, what is socially unreasonable will depend upon what is unreasonable from the point of view of the individual. * * *
"But socially unreasonable conduct is broader than this, and the law looks beyond the defendant’s own state of mind and the appearance which his own conduct presented, or should have presented to him. It must *164measure his acts, and the harm he has done, by an objective, disinterested and social standard. It may consider that his behavior, although entirely reasonable in itself from the point of view of any man in his position, has created a risk or has resulted in harm to his neighbors which is so far unreasonable that he should nevertheless pay for what he breaks. Sometimes it must range rather far afield, and look primarily to the social consequences which will follow. * * *” Prosser, Torts, supra at 4-6. (Emphasis supplied.)
In Kisle v. St. Paul Fire & Marine Ins., 262 Or 1, 6, 495 P2d 1198 (1972), the court said:
"* * * A tort is a breach of a duty created by law and not necessarily by the agreement of the parties. Harper v. Interstate Brewery Co., 168 Or 26, 36, 120 P2d 757 (1942). Prosser, Law of Torts (4th ed), 613. * * *”
In Hackett Digger Co. v. Carlson, 127 Or 386, 390, 272 P 260 (1928), the court defined a tort as " 'a private or civil wrong or injury. A wrong independent of contract.’ ”
In State ex rel Western Seed v. Campbell, 250 Or 262, 442 P2d 215 (1967), cert denied 393 US 1093 (1969), the court dealt at length with the Oregon long arm statute, pointing out that "the Oregon statute was copied from the Illinois statute,” and concluded:
"The Illinois statute was intended to exploit the outer limits of due process in aid of Illinois litigants. See Currie, The Growth of the Long Arm: Eight Years of Extended Jurisdiction in Illinois, 1963 U Ill L F 533. It is reasonable, therefore, to hold that a statute modeled after the Illinois statute should be interpreted in Oregon as broadly as constitutional due process will permit.” 250 Or at 271.
As is pointed out in Poole, a substantial majority of the cases which have considered the question presented here have concluded that on facts identical to the case at bar the long arm statute does apply and that failure of the nonresident father to support his illegitimate child sired in the forum state does constitute tortious conduct within that Act. Among the *165states so holding is Illinois, Poindexter v. Willis, 87 Ill App 2d 213, 231 NE2d 1 (1967), where the court said:
"In accordance with the views expressed by our Supreme Court, we interpret Sections 16 and 17 of the Illinois Civil Practice Act to reflect a conscious purpose by the Legislature to assert jurisdiction over nonresidents to the extent permitted by the due process clause and therefore hold that the word 'tortious’ as used in Section 17(l)(b) of said Act is not restricted to the technical definition of a tort, but includes any act committed in this state which involves a breach of duty to another and makes the one committing the act liable to respondent in damages. Therefore, in our opinion, the failure of the father to support an illegitimate child constitutes a tortious act within the meaning of the statute and subjects him to the jurisdiction of the Illinois courts under Chapter 110, Secs. 16 and 17 of the Illinois Civil Practice Act.” 231 NW2d at 3.
Among the most recent cases are State ex rel Nelson v. Nelson, 298 Minn 438, 216 NW2d 140 (1974), and Gentry v. Davis, 512 SW2d 4 (Tenn 1974). In Nelson the Supreme Court of Minnesota discussed this problem and said:
"The issue for decision is whether a nonresident putative father of an illegitimate child bom to a resident mother, the act of conception having allegedly occurred in this state, may be subjected to the jurisdiction of a court in this state upon a complaint of fathering and failing to support the child. The more precise issue is whether this paternity complaint alleges a 'tort’ within the meaning of our long-aim statute, Minn. St. 543.19, for defendant does not otherwise assert that such application of the statute would be a denial of due process. We hold that the long-arm statute does apply and accordingly affirm the order of the district court denying defendant’s motion to quash the return of service and to dismiss the action for lack of personal jurisdiction.” 298 Minn at 439-40, 216 NW2d at 141-42.
Gentry v. Davis, supra, holds to the same effect.
A.R.B. v. G.L.P., 180 Colo 439, 507 P2d 468 (1973), though holding contra by a divided court to the above authorities, is the only appellate court to have done so. *166In that case the court sought to distinguish Poindexter v. Willis, supra, on the ground it turned on the question of failure to support, and declined to extend the Colorado long arm statute to a similar fact situation. Not even the Colorado court placed its decision upon due process grounds. None of the authorities I have found hold that due process is violated by application of the long arm statute to a fact situation similar to the case at bar.
Our Supreme Court in Western Seed v. Campbell, supra, holds that the long arm statute "should be interpreted as broadly in Oregon as constitutional due process will permit.” 250 Or at 271.
I agree with Prosser, supra, that the law looks beyond the state of mind of the defendant in such a case as this and measures his acts and the harm he has done by an objective, disinterested standard. It is a basic law of nature that a completed act of sexual intercourse may result in pregnancy, and when, as the court found here, that occurs, it is a clearly foreseeable consequence of the act, and creates a multitude of social consequences of which the father’s duty to support is but one.
I conclude, based upon the foregoing, that the failure of the respondent father to support his child, conceived and living within this state, constitutes a tortious act within ORS 14.035(1)(b), and that therefore the putative father has submitted himself to the jurisdiction of the courts of Oregon as to a proceeding by the mother to establish paternity and enforce his duty to support their child.
I turn now to the second question mentioned above, namely, does the act of intercouse within the state of Oregon with its resulting pregnancy, birth and residency of the child in Oregon, and defendant’s failure to support establish "a substantial enough connection” with the state of Oregon to warrant application of the long arm statute? The general problem is discussed at length by our Supreme Court in State ex rel White v. *167Sulmonetti, 252 Or 121, 448 P2d 571 (1968), and in Myers v. Brickwedel, supra.
In the latter case the Supreme Court held that an act of voluntary sexual intercourse in Oregon by a wife established a "substantial enough connection” despite the fact that both he and she were nonresidents of Oregon, to enable her husband to sue her paramour, apparently also a nonresident of Oregon, for alienation of affections or criminal conversation, and to effect valid personal service upon him in another state under ORS 14.035(l)(b). Essentially the court relied upon a strong Oregon public policy against the alleged act.2
The public policy of Oregon to require the support of a child, legitimate or not, and to assure payment of necessary medical costs in connection with its birth cannot be questioned. See: Clarkston v. Bridge, 273 Or 68, 539 P2d 1094 (1975); Gostevskyh v. Kalugin, 7 Or App 623, 625, 492 P2d 826 (1972).
In the latter case, we said:
"* * * Since Oregon’s first filiation statute was passed in 1917,
" '* * * [I]t has been and is the policy of this state not only to permit but to require any man who is responsible for any unmarried female becoming pregnant * * * to pay [for the child’s support] * * *.’ Dannels v. U.S. National Bank, 172 Or 213, 241, 138 P2d 220, 231 (1943).” 7 Or App at 625.
I conclude here that a substantial connection with the state of Oregon and citizens of this state exists sufficient to warrant application of ORS 14.035.
Accordingly, I respectfully dissent.
See: Kisle v. St. Paul Fire & Marine Ins., 262 Or 1, 6-7, 495 P2d 1198 (1972); Harper v. Interstate Brewery Co., 168 Or 26, 36-37, 120 P2d 757 (1942). See also: A.R.B. v. G.L.P., 180 Colo 439, 507 P2d 468 (1973), where in a case involving an identical issue to the case at bar, the problems posed by Prosser are discussed in the dissent.
We note that since Myers v. Brickwedel, 259 Or 457, 486 P2d 1286 (1971), the legislature has, by Oregon Laws 1975, ch 562, abolished the right of action for alienation of affections and criminal conversation.