Alcarese v. Stinger
| Decision Date | 09 February 1951 |
| Docket Number | No. 88,88 |
| Parties | ALCARESE v. STINGER et al. |
| Court | Maryland Court of Appeals |
Henry M. Decker, Jr., Baltimore (Archer & Day, Bel Air, on the brief), for appellant.
B. Conway Taylor, Jr., Baltimore (W. Hamilton Whiteford and Due, Nickerson & Whiteford, Baltimore, on the brief), for appellees.
Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.
This is an appeal from an order granting appellee's motion to dismiss, and dismissing with costs, the tort action instituted in Harford County, Maryland, by John Alcarese, appellant, against the appellees, Philip Stinger and John H. McKee, and two other persons, all defendants being non-residents of Maryland.
This suit was instituted by appellant to recover for personal injuries received in a motor vehicle collision which occurred in Cecil County, Maryland, on or about July 2, 1946. Service of process was made upon the non-resident owners and operators on or about June 24, 1949, under the provisions of Article 66 1/2, Section 106--Civil Liability--1947 Supplement of the Code. The motion to dismiss alleged that the action was improperly brought in Harford County as that court lacked jurisdiction. It was also alleged that venue in the case was confined either to Cecil County 'where the accident happened, under the provisions of Section 157 of Article 75 or to Anne Arundel County, the locale of the Secretary of State through whom service of process was admitted.' From an order of the Circuit Court for Harford County granting to motion and dismissing the proceedings with costs, the appellant appeals.
The pertinent parts of Article 66 1/2, Section 106, supra, follow:
'106. (Service of Process Upon Non-Resident Owners or Operators.) The acceptance by a non-resident individual, firm, or corporation of the rights and privileges of using the roads and highways of Maryland, as evidenced by his, their, or its operation of a motor vehicle on any of the public highways within the limits of this State, shall be deemed equivalent to an appointment by such non-resident individual, firm or corporation of the Secretary of State, or his successor in office, to be his, their or its true and lawful attorney upon whom may be served all lawful processes in any action or proceeding instituted, filed or pending against him, them or it, growing out of any accident or collision in which said non-resident may be involved, while operating or causing to be operated, a motor vehicle on such public highway and said acceptance of the rights and privileges of using said highways or the operation of said motor vehicle by said non-resident individual, firm or corporation within this State, shall be a signification of his, their or its agreement that such process be of the same legal force and validity (except as hereinafter provided) as if served on him, them or it personally.
It is admitted by all parties in this case, and we so find, that there are no venue provisions as such in Article 66 1/2, Section 106, supra. The appellee contends that in the absence of specific provisions in that statute covering venue the normal rules as to venue as set forth in the venue statute of the State, Code 1947 Supplement, Article 75, Section 157, governs. That Section provides:
'No person shall be sued out of the county in which he resides until the sheriff or coroner of the county in which he resides shall have returned a non est on a summons issued in such county; provided, that nothing herein contained shall apply to any person who shall abscond from justice in the county where he lives, but such person may be sued in any county where he may be found and provided further, that any person who resides in one county but carries on any regular business, or habitually engages in any avocation or employment in another county, may be sued in either county, whether before a justice of the peace or in a court of law or equity; this section not to apply to ejectment, dower, replevin, scire facias on judgment or decree, nor to heirs, devisees or terre-tenants, against whom process may be issued to another county.
'In any action ex delicto in which all of the defendants are not residents of, nor carrying on regular business in, nor habitually engaged in any avocation or employment in one county, the plaintiff may, at his election, sue all said defendants in the county where the cause of action arose. As used in this section the term 'county' includes 'Baltimore City'.'
In the case of Employers' Liability Assurance Corp. v. Perkins, 169 Md. 269, 181 A. 436, 440, the accident happened in Maryland outside of Baltimore City, and suit was filed against the non-resident defendant in the Court of Common Pleas of Baltimore City. In that case, decided November 21, 1935, this Court held the Act providing for service upon non-resident owners and operators, then 'Code, art. 56, § 190A, with amendments by chapter 70 of Acts of 1931, and chapter 288 of Acts of 1933,' now Code, 1947 Supplement, Article 66 1/2, Section 106, supra, constitutional and valid. The only amendments made to that Act since Chapter 288 of the Acts of 1933 are not pertinent to the issues now before this Court. Therefore, the constitutionality of the Act here in question has been previously decided. The question as to whether the suit should have been brought in the county where the accident happened or in the jurisdiction of the residence of the Secretary of State was not raised in that case.
The appellees base their contention that the suit should have been brought in Cecil County, where the accident happened, on the last paragraph of Article 75, Section 157, supra. It is plain that that section has no application to suits brought against non-residents under Article 66 1/2, Section 106, supra. It was made to apply only to actions against residents of Maryland or non-residents 'carrying on regular business' or 'habitually engaged in any avocation or employment in one county' within this State. It was merely an arbitrary designation by the legislature of the county in which suit might be brought at the plaintiff's election under such applicable situations.
On account of statutory differences in the various states there is quite a difference in the decisions. The following quotation from Blashfield in his Encyclopedia of Automobile Law and Practice, Volume 9, Part 1, Permanent Edition, Section 5817, pages 49-50, is apt here:
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