Boulay v. Pontikes

• Decision Date: 09 November 1950
• Docket Number: No. 792.,792.
• Citation: 93 F. Supp. 826
• Court: U.S. District Court — Western District of Missouri
• Parties: BOULAY v. PONTIKES et al.

93 F. Supp. 826

BOULAY v. PONTIKES et al.

No. 792.

United States District Court W. D. Missouri, Southwestern Division.

November 9, 1950.

Charles M. Cook, Carthage, Mo., for plaintiff.

Laurence H. Flanigan, McReynolds, Flanigan & Flanigan, Carthage, Mo., for defendants.

RIDGE, District Judge.

Substituted service of process was had on defendants in this action under Section 8410.1 et seq., Mo.R.S.A., commonly referred to as the Non-resident Motorist Statutes of Missouri. A Plymouth sedan owned by defendant Emkay Car Leasing Company, an Illinois corporation, was driven by the defendant Pontikes on a highway in the State of Missouri, while defendant Giusti was riding therein, when it came into collision with an automobile operated by plaintiff. The complaint alleges that defendant Emkay Car Leasing Company leased said automobile to defendants Pontikes and Giusti, and that defendant Pontikes, while driving the same at the time of the occurrence in question, "was acting under the control, supervision and as agent for the defendant, Steve Giusti" and that said individual defendants "were jointly engaged in transporting said automobile from Chicago to ____, for their mutual benefit and pleasure, and each had an equal right to direct and control the conduct of the other in respect to the operation" thereof. Specific acts of negligence are charged against the individual defendants in the complaint. The right of action asserted against the corporate defendant is that it was negligent: "In renting, leasing and entrusting said 1950 Plymouth Sedan to said defendants, Chris Pontikes and Steve Giusti, when the defendant knew or should have known that the defendants Chris Pontikes and Steve Giusti were minors and were reckless and incompetent, and that danger to third persons and property would be the reasonable consequence of the operation of said automobile by said defendants, Chris Pontikes and Steve Giusti."

Under the above state of facts, the corporate defendant, owner of the Plymouth automobile, and the individual defendant Giusti, separately, seek dismissal of this action as to them, for lack of jurisdiction over their persons, and to have the sheriff's return in this removal action quashed, because of insufficiency of service of process upon them.

The pertinent parts of the statutes of Missouri under which substituted service of process was had on defendants, read as follows:

Section 8410.1, Mo.R.S.A. provides that: "The use and operation of a motor vehicle * * * in this State on the public highways thereof by a person who is a nonresident * * * shall be deemed" an agreement to substituted service of process through the Secretary of the State of Missouri. Section 8410.3, Mo.R.S.A. defines, "The term `Person', as used in the above section to mean: a. The owner of the motor vehicle * * * whether it is being used and operated personally by said owner or by his agent * * * (and) c. Any person who is in charge of the motor vehicle * * * and of the use and operation thereof with the express or implied consent of the owner."

First as to the motion of defendant Emkay Car Leasing Company. Said defendant seeks dismissal and to have process herein quashed, because under the facts alleged in the complaint it is not a "person" within the purview of the above statute upon which substituted service of such process may be had. Its contention amounts to this: The complaint alleges that it "leased" the Plymouth automobile in question to the individual defendants; process under the above statutes may be directed only against a non-resident owner of an automobile if it is used and operated on the highways of Missouri by him or "by his agent"; as lessees of the Plymouth automobile, the individual defendants cannot be said to be "its agents" at the time of the collision alleged in the complaint; therefore, it asserts the substituted service of process had upon it under the above facts is void and, as a consequence, this Court has no jurisdiction over said defendant.

The Non-resident Motorist Statute of Missouri, imposing a contractual obligation on non-resident motorists who use the highways of said State for the operation of their motor vehicles, is in derogation of the common law and affects substantial rights so that it cannot be extended by implication but must be strictly construed. Cf. Wood v. White, 97 F.2d 646; certiorari denied 304 U.S. 578, 58 S.Ct. 1048, 82 L.Ed. 1541; Kirchner v. N. & W. Overall Co., D.C., 16 F.Supp. 915. It is apparent from the provisions thereof that the non-resident owner of an automobile is a "person" subject to substituted service of process thereunder only if the motor vehicle is "operated personally by said owner or by his agent" on the highways of Missouri. We do not believe that authorities are necessary to conclude that the term "agent" as used in said statutes must be interpreted other than according to the legal meaning which the law ordinarily attaches to it. In the sense in which that term is therein used, it is apparent that it contemplates a relationship that has all the legal...