Bentatou, Zakarya

Bernard, Monique

Guye, Maxime

Jacquier, Alexis

Kober, F.

Rapacchi, Stanislas

Troalen, Thomas

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Tuning Blipped CAIPIRINHA for simultaneous multi-slice (SMS) balanced SSFP cardiac imaging

Lumley, Justin

Case Western Reserve University School of Law

Case Western Reserve Law ReviewVolume 13 | Issue 21962Civil Procedure--In Personam Actions and theNonresident Motorist StatutesJustin LumleyFollow this and additional works at: https://scholarlycommons.law.case.edu/caselrevPart of the Law CommonsThis Recent Decisions is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law ScholarlyCommons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve UniversitySchool of Law Scholarly Commons.Recommended CitationJustin Lumley, Civil Procedure--In Personam Actions and the Nonresident Motorist Statutes, 13 W. Res. L. Rev. 396 (1962)Available at: https://scholarlycommons.law.case.edu/caselrev/vol13/iss2/26[VoL 13:2Recent DecisionsCIVIL PROCEDURE - IN PERSONAM ACTIONS AND THENONRESIDENT MOTORIST STATUTESDavis v. St. Paul-Mercury Indemnity Company,294 F.2d 641 (4th Cir. 1961)A Texas resident permitted her son to drive her automobile to aMarine base in North Carolina. The automobile was loaned to a fellowMarine who fatally injured plaintiff's intestate. Suit was brought in aNorth Carolina court against the nonresident owner, service of processbeing in accordance with the state's nonresident motorist statute.' De-fendant had notice of the suit, as did her insurance company, whichelected not to defend. Plaintiff recovered a default judgment for$25,000.In a supplementary proceeding against the insurance company fiveyears later, the plaintiff recovered the full amount of the insurance policyplus interest on the default judgment. The insurance company appealedon the ground that the default judgment was void for lack of jurisdictionover the person of the nonresident owner. It was held that North Caro-lina had personal jurisdiction over the nonresident automobile owner.2The constitutionality of a nonresident motorist statute which givesreasonable notice to the defendant is no longer questioned.! Litigationhas shifted from an attack on the jurisdictional basis of the statute toquestions concerning the proper construction of its terms.' Generally,the state court in construing its statute will treat it as being in derogationof the common law, and therefore will not extend it by implication topersons falling outside its specific provisions.5 Almost all states now1. N.C. GEN. STAT. § 1-105 (Supp. 1959). The statute provides that process may beserved on a nonresident in any action "'. . . growing out of any accident or collision inwhich said nonresident may be involved by reason of the operation by him, for him, andunder his control or direction, express or implied, of a motor vehicle on such public high-ways of this State .... "2. Davis v. St. Paul-Mercury Indemnity Co., 294 F.2d 641 (4th Cit. 1961).3. Young v. Masci, 289 U.S. 253 (1933) (The nonresident motorist statute was extended toa user with permission.); Hess v. Pawloski, 274 U.S. 352 (1927). But see Wuchter v.Pizzutti, 276 U.S. 13 (1928) (Provision must be made for notifying motorists.). Elevenyears before Hess, in Kane v. New Jersey, 242 U.S. 160 (1916), the Supreme Court sus-tained a New Jersey statute which required actual appointment of a state official as the agentof the nonresident motorist as a condition to using the highways of the state.4. See generally Dambach, Personal Jurisdiction: Some Current Problems and ModernTrends, 5 U.C.L.A.L. REv. 198, 199-211 (1958); Stumberg, Extension of Nonresident Motor-ist Statute to Those Not Operators, 44 IOWA L. REv. 286 (1959).5. See, e.g., Ray v. Richardson, 250 Ala. 705, 36 So. 2d 89 (1948); Chapman v. Davis,233 Minn. 62, 45 N.W.2d 822 (1951); Harris v. Owens, 142 Ohio St. 379, 52 N.E.2d 522(1943); In re Wilcox's Estate, 137 N.E.2d 301 (Ohio Ct. App. 1955); Pray v. Meier, 69Ohio App. 141, 43 N.E.2d 318 (1942) (dissenting opinion). See also Annot., 53 A.L.R.2d1164 (1957).Nonresident Motoristhave such statutes, but the class of nonresident motorists affected differs.'By construing its statute as applying to an automobile owner who hadnever come into the state personally but who had permitted another touse her automobile there, the North Carolina court raised the questionwhether an in personam judgment rendered in accordance with that in-terpretation of a nonresident motorist statute would be constitutionallyvalid.7The United States Court of Appeals decided that a state's jurisdictionmay extend to such a nonresident. The decision was based primarily up-on the reasoning of International Shoe Company v. Washington.8 Thecourt also relied upon cases in areas other than automobile litigationwhere the courts had re-examined the concepts underlying in personamjurisdiction.96. See Note, 44 IowA L. REv. 384, 390-392 (1959), for listings of various nonresidentmotorist statutes. Only Alaska seems to have no provision for substitute service on nonresi-dent motorists. Arizona, California, Florida, Iowa, Michigan, New York, and Washingtonhave statutes which clearly allow for service to be made upon nonresident owners who haveconsented to the use of the car by another. Auz. REv. STAT. ANN. § 28-502 (1956); CAL.VEHcLE CODE § 404 (Supp. 1957); FLA. STAT. ANN. § 47.29 (Supp. 1960); IowA CODEANN. § 321.499(3) (Supp. 1960); MftcH. STAT. ANN. § 9.2103 (1960); N.Y. VEmcLE &TRAFFIc LAW § 253; WAsH. IREv. CODu § 46.64.040 (Supp. 1959).See Oio REv. CODE § 2703.20 (Supp. 1961), which provides that process may beserved on "Any nonresident of this state, being the operator or owner of any motor vehicle,who accepts the privilege extended by the laws of this state to nonresident operators andowners, of operating a motor vehicle or of having the same operated, within this state...."Cf. Parr v. Gregg, 70 Ohio App. 235, 42 N.E.2d 922 (1942) (The legislature designed theterm to apply only to persons actually controlling the driving and steering mechanism.);Taylor v. Hall, 103 Ohio App. 283, 145 N.E.2d 241 (1956) (The statute was not restrictedto nonresidents who caused accidents while operating the motor vehicle. Here, nonresidentsinjured a passing pedestrian by opening the cab door of a parked truck across the plaintiff'spath.)7. No cases have been found directly supporting such an extended construction of this typeof statute. But see Ewing v. Thompson, 233 N.C. 564, 65 S.E.2d 17 (1951) (The familypurpose doctrine was employed to sustain service on a nonresident owner who had not beenpersonally present in the state.); Cf. Kentucky v. Maryland Cas. Co., 112 F.2d 352 (6th Cir.1940) (The court refused to allow service on nonresident aunt of minor driver because factsalleged did not bring the automobile within the family purpose doctrine.). Some courts haveallowed service upon nonresident owners by using agency or employer-employee theories.See Smith v. Christian, 124 F. Supp. 201 (W.D. Mo. 1954); Lamere v. Franklin, 149 Misc.371, 267 N.Y.S. 310 (Sup. Ct. 1933). Other courts have refused to allow an extension ofnonresident motorist statutes to nonresident owners. See Larsen v. Powell, 117 F. Supp. 239(D. Colo. 1953); Wilson v. Hazard, 145 F. Supp. 23 (D. Mass. 1956); Dalton v. Alex-ander, 10 Ill. App. 2d 273, 135 NXE.2d 101 (1956); Zimmerman v. First Judicial Dist.Court, 332 P.2d 654 (Nev. 1958).8. 326 U.S. 310 (1945). Although this case involved a foreign corporation defendant,there is a general agreement among the law review writers that the Supreme Court's observa-tions concerning the basis for judicial jurisdiction in personam were intended to apply as wellto nonresident natural persons. See note 11 infra.9. E.g., Milliken v. Meyer, 311 U.S. 457 (1940) (domicile as basis of jurisdiction);Henry L. Doherty & Co. v. Goodman, 294 U.S. 623 (1935) (nonresident's agent sellingsecurities within the state); Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957) (singletortious act within the state).Dubin v. City of Philadelphia, 34 Pa. D. & C. 61 (Phila. County Ct. 1938), noted in87 U. PA. L. REV. 119 (1938), was also cited. Here, the Pennsylvania court held that own-ership of realty within the forum is a basis for in personam jurisdiction over a nonresident.1962]WESTERN RESERVE LAW REVIEWInternational Shoe qualified the inflexible rule of Pennoyer v. Neff'that personal service within the state is absolutely necessary for an inpersonam judgment against a nonresident. It authorized the use of sub-stituted service in obtaining in personam jurisdiction over a foreign corpo-ration" whenever the corporation has sufficient contact or ties with theforum to make it reasonable and just according to the "traditional con-cepts of fair play and substantial justice" to do so.2The application of this reasoning to the controlling circumstances ofthe principal case would seem to justify the result.3 Here, the nonresi-dent owner voluntarily sent her automobile into the state. This act out-side of the state had direct and foreseeable consequences within theforum. 4 The resultant injury was witnessed by North Carolina residentsNonresident motorist statues, of course, permit the exercise of jurisdiction over owners ofautomobiles under certain circumstances but the basis of this jurisdiction is not the mereownership of the personalty. On the question of whether judicial acceptance of a nonresi-dent due to his relation to real property within the state might allow for a further extensionof jurisdiction based upon relationships to tangible personal property, see Note, 44 IowA L.REV. 374 (1959). The author there states: "One objection might be based upon the patentdifference between personal and real property - the lack of permanence of the personalty.It is perishable, but more important, it can be moved from one jurisdiction to another. Butis there a logical reason for making permanency a criterion here? We assume that at themoment the cause of action arises the personalty is extant and present within the jurisdiction.If he was not responsible for its original location there, the nonresident, at least, has chosento associate himself with the property located within the jurisdiction. Should he not berequired to answer within this jurisdiction for the injurious consequences of the personaltybeing present to the same extent as if it had been realty? It would only seem just that he doso." Supra, at 381-82.10. 95 U.S. 714 (1878). See also McDonald v. Mabee, 243 U.S. 90, 91 (1917), wherethe court said: "The foundation of jurisdiction is physical power .... "Some writers have proposed restricting, if not abrogating, "transient" jurisdiction. SeeEhrenzwig, CONFLICT OF LAWs, 102-06 (1959); Ehrenzweig, The Transient Rule of PersonalJurisdiction: The "Power" Myth and Forum Conveniens, 65 YALE L. J. 289 (1956).11. See Note, BROOKLYN L. REv. 291, 293-99 (1958), for a detailed analysis of the Inter-national Shoe opinion which indicates that the concepts apply equally to natural persons. Seealso Cleary & Seder, Extended jurisdictional Bases for the Illinois Courts, 50 Nw. U.L. REV.599, 603 (1955); Ehrenzweig, Pennoyer Is Dead - Long Live Pennoyer, 30 ROcKY MT.L. REV. 285, 287 (1958); Reese & Galston, Doing an Act or Causing Consequences as Basisof Judicial Jurisdiction, 44 IOWA L. REV. 249, 251 (1959)."One argument against applying International Shoe to individuals or for applying it dif-ferently is that the decision's contacts - interest approach flows from the states' traditionalpower to exclude foreign corporations or to condition their entrance upon submission tobroad extraterritorial jurisdiction. Some courts have accepted this rationale and have reasonedthat the absence of power to exclude individuals precludes the imposition of similarly broadjurisdiction and requires a stronger state interest before jurisdiction over natural personsmay be asserted ...."A more reasonable objection is based on the ease of application of the established juris-dictional tests for natural persons ...."If the interest analysis is to be applied to natural persons, it should be applied withgreater restraint than in the case of corporations." Note, 73 HARe. L. REV. 909, 935-36 (1960).12. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).13. It is not necessary in all cases that the act be done in the state; the causing of reasonablyforeseeable consequences in the state may be grounds for the granting of jurisdiction. SeeReese & Galston, Doing An Act or Causing Consequences as Basis of Jurisdiction, 44 IOWAL. REV. 249, 260-64 (1959).14. In some situations, there would seem to be sufficient state and plaintiff interests to[Vol. 13:21962] Nonresident Motoristand is one to which North Carolina substantive law would apply.15 Inbalancing such factors against claims of inconvenience to the nonresidentowner,"0 the assertion of jurisdiction would not violate the "traditionalnotions of fair play and substantial justice."' 7  The nonresident ownerallowed property capable of inflicting serious injury to be taken into an-other state."8 The court concluded that this may fairly be coupled withan obligation upon the owner to stand suit where the property has beentaken with her consent.This decision dearly extends a state's in personam jurisdiction froma situation where the nonresident motorist commits a tortious act' with-in the state, to a situation where a non-tortious act done beyond the state'srender the application of a statute covering such a case constitutional. See Gray v. AmericanRadiator & Standard Sanitary Corp., 22 I. 2d 432, 176 N.E.2d 761 (1961). Here, in asuit by an Illinois resident for injuries sustained when a water heater exploded, the SupremeCourt of Illinois held that an Ohio corporation, which manufactured a safety valve that wasassembled in Pennsylvania into the heater purchased by the plaintiff in Illinois, was subjectto the jurisdiction of the Illinois courts.In Heliriegel v. Sears Roebuck & Co., 157 F. Supp. 718, 721 (N.D. Il. 1957), althoughan opposite result was reached on a similar factual situation, the decision in the Gray casewas predicted in dictum. But cf. Erlanger Mills, Inc. v. Cohoes Fibre Mills, Inc. 239 F.2d502 (4th Cir. 1956), where a North Carolina statute was held unconstitutional when ap-plied to the particular transaction before the court, which was an action against a nonresidentcorporation who shipped defective goods directly into the state. See also Sobeloff, Jurisdictionof State Courts Over Nonresidents in Our Federal System, 43 CORliLL LQ. 196 (1957).15. Both North Carolina and Texas courts would have applied North Carolina law underthe rule that the law of the place where the accident occurred governs. Goode v. Barton, 238N.C. 492, 497, 78 S.E.2d 398, 402 (1953). See T:x. REV. CIV. STAT. ANN. art 4678(1952).16. The factors which a court will consider before it will allow a dismissal of a case withinits jurisdiction because of inconvenience to the litigant are "the relative ease of access tosources of proof; availability of compulsory process for attendance of unwilling, and the costof obtaining attendance of willing witnesses; possibility of view of premises . . . ; and allother practical problems that make trial of a case easy, expeditious and inexpensive." Gulf OilCorp. v. Gilbert, 330 U.S. 501, 508 (1947).In the ordinary case, it would be possible to alleviate extreme hardships to a defendantby a removal to a federal court on the ground of diversity of citizenship. 28 U.S.C. § 14441(1958). A motion could then be made for a change of venue pursuant to 28 U.S.C.§ 1404 (a) (1958). The principle of forum non conveniens may also be applicable insome state courts. See Bata v. Bata, 304 N.Y. 151, 105 NXE.2d 623 (1952).17. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).18. To extend this line of reasoning beyond the area of nonresident motorist litigationmight prove dangerous. "... . the property basis could constitutionally be extended to coverphysical injuries arising from tangible personalty present within the state. However, therelationship between the defendant and the state created by his leaving a piece of personalproperty within its borders, in contrast to the permanent realty, seems too tenuous to allowthe mere presence of that property within the state to be a sufficient basis for other actions inpersonam against the absent non-resident." Note, 73 HARv. L. REv. 909, 948 (1960).19. Since the initial Supreme Court approval of a single act as a basis of jurisdiction in Hessv. Pawloski, 274 U.S. 352 (1927), the problem which faces the courts most often iswhether an employer or personal representative of a driver, or an owner of an automobile, issubject to suit under a nonresident motorist statute which does not explicitly extend coverageto him. Some courts have been hesitant in allowing such an extension. See O'Tier v. Sell,252 N.Y. 400, 169 NE. 624 (1930) (This case required that the nonresident personallyoperate the vehicle.).

Civil Procedure--In Personam Actions and the Nonresident Motorist Statutes

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Civil Procedure--In Personam Actions and the Nonresident Motorist Statutes

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