Zimmerman, N. A.

English

Chicago-Kent College of Law

Chicago-Kent Law ReviewVolume 35 | Issue 2 Article 5April 1957Automobiles - Injuries from Operation or Use ofHighway - Whether It Is Possible to ObtainSubstituted Service upon the PersonalRepresentative of a Deceased Non-ResidentAutomobile Owner under a Statute Providing forSuch Service upon a Non-Resident Owner orOperatorN. A. ZimmermanFollow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreviewPart of the Law CommonsThis Notes is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion inChicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contactdginsberg@kentlaw.iit.edu.Recommended CitationN. A. Zimmerman, Automobiles - Injuries from Operation or Use of Highway - Whether It Is Possible to Obtain Substituted Service upon thePersonal Representative of a Deceased Non-Resident Automobile Owner under a Statute Providing for Such Service upon a Non-ResidentOwner or Operator, 35 Chi.-Kent L. Rev. 134 (1957).Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol35/iss2/5CHICAGO-KENT LAW REVIEWfor denying rescission 34 or as subjecting the minor to a countersuit fordamages arising from the deceit.3 5After all factors are considered, therefore, it would seem to be thebetter view that a surgeon should be allowed to introduce evidence as toan actual consent by a minor, particularly one approaching maturity andthe age of discretion, if not as an absolute defense then at least for thepurpose of providing a mitigating factor to be considered by the jurywhen awarding damages. To do otherwise would be to allow a minor tomake a profit from participating in the very tort itself.J. E. EDMONDSONAUTOMOBILES-INJURIES FROM OPERATION OR USE OF HIGHWAY-WHETHER IT IS POSSIBLE TO OBTAIN SUBSTITUTED SERVICE UPON THE PER-SONAL REPRESENTATIVE OF A DECEASED NoN-RESIDENT AUTOMOBILE OWNERUNDER A STATUTE PROVIDING FOR SUCH SERVICE UPON A NON-RESIDENTOWNER OR OPERATOR--The extent to which substituted service may beutilized in automobile accident cases was put in issue in the recent Ohiocase of In Re Wilcox' Estate.' Therein, a resident of Colorado had beeninvolved in an automobile accident in Ohio after which he returned homeand died shortly thereafter. The present claimants sought an adjudicationof this matter before an Ohio tribunal and, for this purpose, they at-tempted to obtain jurisdiction over the personal representative of thedeceased under the so-called substituted service statute.2 The Court ofAppeals of Ohio, in reversing the trial court, held that a statute providingfor substituted service upon a non-resident owner or operator of an auto-mobile by serving process upon the Secretary of State did not authorizesuch service upon the personal representative of one who was subject tothis statute.Since the adoption in 1908 of the first statute subjecting non-resident84 Young v. Daniel, 201 Ky. 65, 255 S. W. 854 (1923), noted in 72 U. of Pa. ILRev. 450.35 Berryman v. Highway Trailer Co., 307 Ill. App. 480, 30 N. E. (2d) 761 (1940),noted In 19 CHICAGo-KENT LAw RLvizw 302.1 -Ohio App.-, 137 N. E. (2d) 301 (1955).2 Ohio Rev. Code, 1953, § 2703.20, which provides: "Any non-resident of this state,being the operator or owner of any motor vehicle who accepts the privilege ex-tended by the laws of this state to non-resident operators and owners, of operatinga motor vehicle or of having the same operated within this state . . . by such ac-ceptance or licensure and by the operation of such motor vehicle within this statemakes the secretary of state of the state of Ohio his agent for the service of processin any civil suit or proceeding instituted In the courts of this state against suchoperator or owner of such motor vehicle, arising out of. any accident or collision oc-curring within this state In which such motor vehicle is involved."DISCUSSION OF RECENT DECISIONSmotorists to the jursidiction of the state whose highways they use,8 all therest of the American states, as well as the District of Columbia, have en-acted such statutes.4 Such statutes were at first held unconstitutional, 5but since the decision in the case of Hess v. Pawloski,6 they have consist-ently been sustained.This determination, plus others fortifying its position, led to the cases,such as the instant case, where substituted service was attempted upon thepersonal representative of a non-resident motorist.7 In construing thestatute here involved, the court took the position that an agency was cre-ated with the Secretary of State as agent, and the non-resident motoristas principal. Applying a well recognized principle of law, the court de-cided that this agency was revoked by the death of the principal. Onceholding that the Secretary of State is no longer an agent, it then appearsthat there is no one within the jurisdiction of the Ohio courts who isamenable to service of process in this action. Other courts, in construingsimilar statutes, have taken the view that they must be strictly construedand, therefore, have not permitted such service upon the personal repre-sentative of the deceased non-resident motorist. No matter which view wastaken, the courts have unanimously held that such service was not proper.Therefore, it is easily seen that the death of a non-resident motorist de-feated the purpose of these statutes in that residents of the state in whichthe accident occurred were forced to go to other states to seek redress fortheir injuries. To remedy this defect several states have amended suchlaws by binding the deceased motorist's personal representative to serviceof process in the same manner as the motorist could have been served hadhe survived or by providing for the survival of a pending action in per-sonam against said foreign personal representative.83 New Jersey Laws 1908, Ch. 304, p. 613.4 A collection of these statutes appears In Knoop v. Anderson, 71 F. Supp. 832(1947), and also in 27 CHICAGO-KENT LAW REVIEW 231.5 Hendrich v. Maryland, 235 U. S. 610, 35 S. Ct. 140, 59 L. Ed. 885 (1915);Shusareba v. Ames. 255 N. Y. 490, 175 N. E. 187 (1931).6 274 U. S. 352, 47 S. Ct. 632, 71 L. Ed. 1091 (1927).7 Brown v. Hughes, 136 F. Supp. 55 (1955) ; Fazio v. Amer. Auto Ins. Co., 136 F.Supp. 184 (1955) ; Hendrix v. Jenkins, 120 Supp. 879 (1954); Warner v. Maddox,68 F. Supp. 27 (1947) ; Buttson v. Arnold, 4 F.R.D. 492 (1945) ; Brogan v. Maclin,126 Conn. 92, 9 A. (2d) 499 (1939); Riggs v. Schneider's Ex'r., 279 Ky. 361, 130S. W. (2d) 816 (1939) ; Downing v. Schwenck, 138 Neb. 395, 293 N. W. 278 (1940) ;Young v. Potter Title & Trust Co. 115 N. J. L. 518. 181 A. 44 (1935) ; Lepre v. RealEstate-Land Title Trust Co., 11 N. J. Misc. 887, 168 A. 858 (1933); Vecchione v.Palmer, 249 App. Div. 661, 291 N. Y. S. 537 (1936) ; Dowling v. Winters, 208 N. C.521, 181 S. E. 751 (1935); Harris v. Owens, 142 Ohio St. 379, 52 N. E. (2d) 522(1944) ; Donnelly v. Carpenter, 55 Ohio App. 463, 9 N. E. (2d) 888 (1936) ; Quinn v.Revoir, 3 D. & C. (2d) 682 (1955) ; McElroy v. George, 76 D. & C. 231 (1951) ; Stateex rel. Ledin v. Davidson, 216 Wis. 216, 256 N. W. 718 (1934), 96 A. L. R. 589.8 For example, Pope's Ark. Stat. 1944, Supp.. § 1375; Fla. Stat. Ann., 1949 Supp. Ch.47, § 47.29(2) ; Iowa Code 1946, VoL 1, Ch. 321, §§ 321.498-9; Md. Ann. Code (Flack),CHICAGO-KENT LAW REVIEWA possible solution to the problem in the instant case was given in thecase of Furst v. Brady,9 where the deceased non-resident motorist carriedan insurance policy which protected him from loss due to his automobileaccident. The court there treated the policy as an asset in the state wherethe suit was brought and allowed recovery against an ancillary administra-tor. In the case at hand, the deceased had a similar policy, and the claim-ants attempted to have an ancillary administrator appointed for purposesof reaching this policy to satisfy their claims in their home state. Thecourt did not allow this appointment, and refused to treat the policy asan asset in the state where suit was brought, thereby turning away fromthe above suggested solution.The increasing use of automobiles and accidents connected therewithseems to point to the necessity of a new concept in the law, especially sincethe more violent the accident the greater the chance of death for those in-volved. Therefore, the frequency of these deaths will give rise to more andmore actions similar to the instant case. The legislature of Ohio, appre-ciating these facts and recognizing the need for conferring such jurisdic-tion, has followed the modern trend and passed an amendment to its so-called substituted service statute and personal representatives of deceasednon-resident motorists may now be served in that manner.'0 The mostsalient aspect of this case lies in the fact that the legislature recognizedthe inadequacy in its state law and immediately stepped into the breachand remedied the situation.N. A. ZIMMERMANCORPORATIONs-ACTIoNs BETwEEN SHAREHOLDERS AND OFFICERS ORAGENTs-W =ETERm PERSONAL RECOVERY BY FORMER SHAREHOLDER ISALLOWABLE IN ACTIONS AGAINST OFFICER FOR MISAPPROPRIATION Or COR-PoRATE AssETs-The United States Court of Appeals for the Ninth Circuitwas recently faced with the problem of whether a former shareholdermight be allowed an individual recovery against an officer of the corpo-ration in the case of Watson v. Button.' Therein, the former owner ofone-half of the corporate stock brought an action against the former gen-1939, Art. 56, § 186.189; Mich. Stat. Ann., 1949 Cum. Supp., § 9.2103; Neb. Rev. Stat.1943, Vol. 2, Ch. 25, Art. 5, § 25-530 as amended in 1949; Thompson's Laws N. Y.,1945 Supp., Vehicle and Traffic Law, § 52, p. 725; Wis. Stats. 1949, Ch. 85 § 85.05(3).The constitutionality of these statutes has been upheld in such cases as: Plopa v.DuPre, 327 Mich. 606, 42 N. W. (2d) 777 (1950); Leighton v. Roper, 300 N. Y. 434,91 N. E. (2d) 876 (1950).9375 Ill. 425, 31 N. E. (2d) 606 (1940), noted in 19 CMCAGo-KENT L,&w R~wew293.10 Legislative Acts and Joint Resolutions of the State of Ohio, 1955-56, p. 49.1235 F. (2d) 235 (1956).

Automobiles - Injuries from Operation or Use of Highway - Whether It Is Possible to Obtain Substituted Service upon the Personal Representative of a Deceased Non-Resident Automobile Owner under a Statute Providing for Such Service upon a Non-Resident Owner or Operator

bepress Legal Repository

https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1882&amp;context=cklawreview

Automobiles - Injuries from Operation or Use of Highway - Whether It Is Possible to Obtain Substituted Service upon the Personal Representative of a Deceased Non-Resident Automobile Owner under a Statute Providing for Such Service upon a Non-Resident Owner or Operator

Abstract

Similar works

Full text

Available Versions

Chicago-Kent College of Law

bepress Legal Repository