Brauer Mach. & Supply Co. v. Parkhill Truck Co.

• Decision Date: 02 March 1943
• Docket Number: Gen. No. 42026.
• Court: United States Appellate Court of Illinois
• Parties: BRAUER MACHINE & SUPPLY CO. v. PARKHILL TRUCK CO.

318 Ill.App. 56

47 N.E.2d 521

BRAUER MACHINE & SUPPLY CO.

v.PARKHILL TRUCK CO.

Gen. No. 42026.

Appellate Court of Illinois, Fourth District.

March 2, 1943.

Appeal from Circuit Court, Clay County; James G. Burnside, Judge.

Action by Brauer Machine and Supply Company for the use of Bituminous Casualty Corporation against Parkhill Truck Company to recover amount paid to an employee of the Brauer Machine and Supply Company for injury allegedly caused by negligence of the defendant. From an order granting defendant's motion to quash the service of summons, the plaintiff appeals.

Affirmed. Smith, McCollum & Riggle, of Flora, for appellant.

Harvey D. McCollum, of Louisville, and Kramer, Campbell, Costello & Wiechert of East St. Louis, for appellee.

BRISTOW, Justice.

On December 20, 1938, the Parkhill Trucking Co., an Oklahoma Corporation engaged in general trucking business, transported a large steel derrick by one of its trucks driven by J. L. Caskie, from Tulsa, Oklahoma to the Brauer Machine and Supply Company, a Corporation located at Clay City, Illinois. The machine shop to which this derrick was delivered is located just off State Bond Issue Road No. 12. The various employees of the trucking company and the machine shop began unloading the derrick, whereupon one of the employees of the machine shop was injured. A claim for compensation under the Workman's Compensation Act was filed. Liability thereunder was established in the amount of $2,252.39. Settlement therefor was made through the Machine Shops Carrier, the Bituminous Casualty Company.

A complaint was filed in the Clay County Circuit Court alleging that the injury suffered by the above mentioned employee was due to the negligence of the trucking company, and that the Bituminous Casualty Company are subrogated to the right to recover the amount paid out by them. It is deemed unnecessary for the purpose of the decision to relate the various charges of negligence.

Process of summons against the nonresident corporate defendant was issued and returned not served by the Sheriff of Clay County, Illinois. Thereupon, service of summons was had under the provisions of Section 20a of “An Act in relation to motor vehicles and to repeal a certain act therein named (Approved June 30, 1919).” The language of said act reads as follows: “The use and operation by a non-resident of a motor vehicle over the highways of the State of Illinois, shall be deemed an appointment by such non-resident of the Secretary of State, to be his true and lawful attorney upon whom may be served all legal process in any action or proceeding against him, growing out of such use or resulting in damage or loss to person or property, and said use or operation shall be a signification of his agreement that any such process against him which is so served, shall be of the same legal force and validity as though served upon him personally. Service of such process shall be made by serving a copy upon the Secretary of the State, or by filing such copy in his office, together with a bond conditioned on the failure of the plaintiff to prevail in the action in the sum of five hundred dollars ($500.00), with sureties to be approved by the Secretary of State, for the purpose of reimbursing the defendant for the expenses necessarily incurred by him in coming into this State to defend the action, and a fee of two dollars, ($2.00), and such service shall be sufficient service upon the said non-resident; if notice of such service and a copy of the process are, within ten days thereafter, sent by registered mail by the plaintiff to the defendant, at the last known address of the said defendant, and the plaintiff's affidavit of compliance herewith is appended to the summons.” Ill.Rev.Stat.1941, c. 95 1/2, § 23.

The defendant, limiting its appearance for the purpose of the motion only, filed its written motion, asking the trial court to quash the service of summons upon the grounds that the injuries complained of did not grow out of, or result from, the use and operation of defendant's truck upon the public highway, but on the contrary occurred while said truck was off the highway and the defendant was engaged in the process of unloading a derrick into the machine shop of the plaintiff. Supporting this motion is filed the affidavit of J. L. Caskie stating that he was present on the date that plaintiff's employee was injured, and that he was the driver of the defendant's truck; that at the time of the injuries the truck was not being used or operated on any part of the highways of the State of Illinois.

The trial court sustained the motion of the defendant. This appeal by the plaintiff to this court resulted.

It is claimed by plaintiff-appellant on this appeal that service of process on the defendant-appellant was fully authorized and warranted under section 20a above quoted. A broad and liberal construction of this statute is urged in order that an obvious legislative intent to remedy certain evils may be accomplished. By quoting from the argument of the appellant as presented in his printed brief, we can best outline the contentions made in its behalf: “In this case the defendant-appellee is a nonresident corporation, unlicensed to do business within this state under the Business Corporation Act, and is engaged in a general trucking business. It saw fit to accept a contract to transport from Tulsa, Oklahoma, to the place of business of plaintiff-appellant near Clay City, Illinois, a heavy steel derrick. It brought its truck to our state border, then used a public highway, continuing its objective over a public highway to a point where such highway passes the place of business of plaintiff-appellant. Then, and yet carrying out its purpose and contractual obligation, drove its truck off of the highway and into plaintiff-appellant's place of business, located immediately adjacent to such highway. Then, in furtherance of its intention and in carrying out its contractual obligation, its agent, in assisting and carrying out the final consummation of its object in bringing its truck within the boundaries of our state, namely, the unloading and delivering of the steel derrick to plaintiff-appellant, committed the negligent act alleged in the complaint as the cause of the injuries sustained by plaintiff-appellant's employee. The unloading of the steel derrick was an essential part of the project of defendant-appellee and in itself the reason for the use of our highways in transporting such derrick. If the derrick were not to be unloaded there would be no reason for the use of our highways in transporting the derrick to its point of destination. The unloading of such derrick at its place of destination was the object of its transportation and as such, as integral part of the acts, conduct and objective of the defendant-appellee and such objective could only be attained by the final act of the driver of defendant-appellee's truck and the act causing the injury complained of, namely, the driving of the truck from under the structure to permit its being lowered to the foundation placed for the derrick. It was only by the unloading that the contractual obligation of defendant-appellee could be completed and its truck released from such use to return to its point of origin or to such place as defendant-appellee might determine in the conduct of its business, again using the public highways of the state.”

[2] The only case in Illinois construing section 20a is that of Jones v. Pebler, 371 Ill. 309, 20 N.E.2d 592, 594, 125 A.L.R. 451, in which the word “nonresident” was construed to apply to corporations as well as to persons. Quoting from this opinion, it is as follows: “A primary purpose of statutory construction is to ascertain the intention of the legislature. In determining this intent courts consider the language used, the evil to be remedied and the object to be attained. Burke v. Industrial Comm., 368 Ill. 554, 15 N.E.2d 305, 119 A.L.R. 1152;Schoellkopf v. DeVry, 366 Ill. 39, 7 N.E.2d 757, 110 A.L.R. 511;People v. Hughes, 357 Ill. 524, 192 N.E. 551. If the language employed admits of two constructions, one of which makes the enactment absurd, if not mischievous, while the other renders it reasonable and wholesome, the construction which leads to an absurd result should be avoided. Burke v. Industrial Comm., supra; Patterson Pure Food Pie Co. v. Industrial Comm., 335 Ill. 476, 167 N.E. 86.

“At least thirty-five States authorize the commencement of suit against non-resident motorists by substituted service on a public official of the State where the cause of action arises, the official being made for this purpose the agent or attorney of the non-resident motorists. These statutes usually make the mere operation of a motor vehicle on the highway by a non-resident the equivalent of a formal appointment of a public officer as agent for receiving service of process. Maurice S. Culp, ‘Process in Actions against Non-Resident Motorists,’ 32 Michigan L. R., p. 325. In Pawloski v. Hess, 250 Mass. 22, 144 N.E. 760, 761, 35 A.L.R. 945, referring to statutory provisions corresponding to section 20a of our Motor Vehicle Law, the Supreme Judicial Court of Massachusetts said: ‘The aim of the statute is to facilitate the enforcement of civil remedies by those injured in their person or property by the negligent or wanton operation of motor vehicles upon the highways of this commonwealth. * * * The general court well may have thought that one effective means for curbing negligence or wanton misconduct in the operation of motor vehicles would be the existence of swift, inexpensive and adequate remedy for injuries flowing therefrom. When one sustaining damage within this commonwealth from the negligence or wanton misconduct of a nonresident is compelled to seek relief in the courts of a jurisdiction where personal service of process may be made upon him, “in many instances the cost of the remedy would” largely exceed ...