Brooks v. National Bank of Topeka

• Decision Date: 07 March 1958
• Docket Number: No. 15819-15823.,15819-15823.
• Citation: 251 F.2d 37
• Parties: Daniel R. BROOKS, a minor, by his next friend, Daniel P. Brooks, Jr., Douglas M. Brooks, a minor, by his next friend, Daniel P. Brooks, Jr., and Sandra F. Brooks, a minor, by her next friend, Daniel P. Brooks, Jr., Appellants, v. NATIONAL BANK OF TOPEKA, Executor of the Estate of William A. Van Winkle, Appellee. Douglas M. BROOKS, a minor, by his next friend, Daniel P. Brooks, Jr., Appellant, v. NATIONAL BANK OF TOPEKA, Executor of the Estate of William A. Van Winkle, Appellee. Sandra F. BROOKS, a minor, by her next friend, Daniel P. Brooks, Jr., Appellant, v. NATIONAL BANK OF TOPEKA, Executor of the Estate of William A. Van Winkle, Appellee. Daniel R. BROOKS, a minor, by his next friend, Daniel P. Brooks, Jr., Appellant, v. NATIONAL BANK OF TOPEKA, Executor of the Estate of William A. Van Winkle, Appellee. Daniel P. BROOKS, Jr., Appellant, v. NATIONAL BANK OF TOPEKA, Executor of the Estate of William A. Van Winkle, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

251 F.2d 37 (1958)

Daniel R. BROOKS, a minor, by his next friend, Daniel P. Brooks, Jr., Douglas M. Brooks, a minor, by his next friend, Daniel P. Brooks, Jr., and Sandra F. Brooks, a minor, by her next friend, Daniel P. Brooks, Jr., Appellants, v. NATIONAL BANK OF TOPEKA, Executor of the Estate of William A. Van Winkle, Appellee.

Douglas M. BROOKS, a minor, by his next friend, Daniel P. Brooks, Jr., Appellant, v. NATIONAL BANK OF TOPEKA, Executor of the Estate of William A. Van Winkle, Appellee.

Sandra F. BROOKS, a minor, by her next friend, Daniel P. Brooks, Jr., Appellant, v. NATIONAL BANK OF TOPEKA, Executor of the Estate of William A. Van Winkle, Appellee.

Daniel R. BROOKS, a minor, by his next friend, Daniel P. Brooks, Jr., Appellant, v. NATIONAL BANK OF TOPEKA, Executor of the Estate of William A. Van Winkle, Appellee.

Daniel P. BROOKS, Jr., Appellant, v. NATIONAL BANK OF TOPEKA, Executor of the Estate of William A. Van Winkle, Appellee.

Nos. 15819-15823.

United States Court of Appeals Eighth Circuit.

January 10, 1958.

Rehearing Denied March 7, 1958.

Solbert M. Wasserstrom, Kansas City, Mo. (George V. Aylward, Jr., Kansas City, Mo., was with him on the brief), for appellants.

Charles L. Carr, Kansas City, Mo. (Clay C. Rogers and Rogers, Field, Gentry & Jackson, Kansas City, Mo., were with him on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

These are appeals from a final judgment dismissing five consolidated actions for want of jurisdiction. The dismissal is based upon the court's determination that section 506.210, V.A.M.S., commonly referred to as the "Long-Arm Service Statute," insofar as it provides for substituted service upon a foreign executor of a nonresident motorist, is unconstitutional, and hence the service of process pursuant thereto does not confer jurisdiction over the defendant in these cases. The court's opinion is reported at 152 F.Supp. 36.

Plaintiffs are all residents of Florida. The defendant executor is a resident of Kansas. Diversity of citizenship and the jurisdictional amount are established.

Plaintiffs in their petitions seek damages for the wrongful death of Mrs. Brooks and for personal injuries sustained by other members of the Brooks family. It is alleged that the damages sued for were the result of a collision occurring on December 17, 1955, in Missouri, between the Brooks automobile and an automobile operated by William Van Winkle. It is alleged that the negligence of Van Winkle in the operation of his automobile upon the Missouri highway was the proximate cause of plaintiffs' damages. Van Winkle died on December 19, 1955, and on said date and prior thereto was a resident and citizen of the State of Kansas. His will was admitted to probate by the Probate Court of Riley County, Kansas, and defendant was by said court appointed executor of Van Winkle's estate on January 16, 1956. Defendant duly qualified as executor and published notice of its appointment pursuant to Kansas law commencing January 17, 1956. No claim was filed against the Kansas estate by any of the plaintiffs. No ancillary probate proceedings on the Van Winkle estate have been commenced in Missouri.

The petitions here involved were all filed in the Circuit Court of Caldwell County, Missouri, in December 1956, and during the same month process in each action was served upon the Missouri secretary of state who, in turn, mailed notice of said service to the defendant. Notice of service in all of these suits was received by the defendant at Topeka, Kansas, by mail on or before December 20, 1956. The service upon the defendant was made in strict compliance with section 506.210. No contention is made to the contrary.

The five cases were removed by the defendant from the State court to the Federal District Court for the Western District of Missouri, and thereafter, upon defendant's motion, the five cases were consolidated for the purpose of filing and determination of defendant's consolidated motion to dismiss.

The basic issue presented by these appeals is whether section 506.210 is unconstitutional insofar as it confers jurisdiction over the foreign executor of a nonresident motorist. The claim of unconstitutionality is based upon defendant's contention that the due process guaranteed by Amendments V and XIV of the Federal Constitution and Article I, Section 10, of the Missouri Constitution, V.A.M.S., has been violated.

The statute upon which jurisdiction is here based, section 506.210, V.A.M.S., reads:

"The use and operation of a motor vehicle or trailer in this state on the public highways thereof by a person who is a nonresident of this state shall be deemed:

"(1) An agreement by him that he, his executor, administrator or other legal representative shall be subject to the jurisdiction of the courts of this state in all civil actions and proceedings brought against him, his executor, administrator or other legal representative by either a resident or a nonresident plaintiff, for damages to person or property, including actions for death, growing or arising out of such use and operation; and

"(2) An appointment by such nonresident, his executor, administrator or other legal representative of the secretary of state of Missouri as his lawful attorney and agent upon whom may be served all process in suits pertaining to such actions and proceedings;

"(3) An agreement by such nonresident that any process in any suit so served shall be of the same legal force and validity as if personally served in this state."

It is pointed out in the trial court's opinion that the original Missouri long arm service statute enacted in 1941 made no provision for service upon executors or administrators of a nonresident motorist. In the absence of such a provision it is generally held that the long arm statute does not reach a foreign executor. See cases collected, Note 53 A.L.R.2d 1164, 1194. In 1949 the Missouri legislature amended the statute to authorize the probate court of the State in which the accident occurred "to appoint a representative of such deceased for the purpose of being sued." V.A.M.S. § 537.020. The Missouri Supreme Court held such amendment violated the due process clause of the Constitution because it did not provide for adequate notice upon the nonresident legal representative. Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763; Crump v. Treadway, Mo., 276 S.W.2d 226. We find nothing in either of these cases which has a direct bearing upon our present issue. The court in neither of said opinions indicates any hostility to the public policy underlying the enactment of the long arm statute.

The present provisions for service upon executors, contained in the statute hereinabove quoted, were enacted by the Missouri legislature in 1955 and were in effect at the time of the accident out of which the present suits arose. The constitutionality of the 1955 amendment has not been passed upon by the Supreme Court of Missouri.

The highest courts of States having statutes similar to the Missouri statute providing for jurisdiction over executors of nonresident motorists having accidents within the State have uniformly upheld the constitutionality of such statutes. Oviatt v. Garretson, 205 Ark. 792, 171 S.W.2d 287; Plopa v. Du Pre, 327 Mich. 660, 42 N.W.2d 777; Tarczynski v. Chicago, Milwaukee, St. Paul & Pac. R. R. Co., 261 Wis. 149, 52 N.W.2d 396; Leighton v. Roper, 300 N.Y. 434, 91 N. E.2d 876, 18 A.L.R.2d 537. The Court of Appeals for the Seventh Circuit upheld the constitutionality of a similar Wisconsin statute. Feinsinger v. Bard, 7 Cir., 195 F.2d 45. In a Note upon the constitionality of extensions of long arm statutes to reach the executor of a nonresident motorist in 18 A.L.R.2d 544, 545, it is stated:

"Attacks upon the statutes providing for substituted service upon the personal representatives of nonresident motorists have followed two main lines: (1) the contention that since the validity of the substituted service is based, at least nominally, upon the motorist\'s consent, involving the fact or fiction of an agency, it must necessarily be revoked by his death, and (2) the contention that while substituted service may be justified as due process, under the police power, in the action against the motorist himself, which is transitory and in personam, the same does not hold true as to an action against his estate through his personal representative, which is in the nature of an action in rem, creating a right against property wholly within another jurisdiction. To date, all the state courts which have considered the matter have upheld the validity of the statutes."

The only case reaching a contrary result is Knoop v. Anderson, D.C.N.D. Iowa, 71 F.Supp. 832. That case involved the constitutionality of the Iowa long arm statute as applied to the administrator of a nonresident motorist. The history of the development of the long arm statute is fully discussed. The court also discussed in considerable detail the effect that must be given a judgment entered against a nonresident executor pursuant to a long arm statute by the State of domiciliary probate. The court reaches the conclusion that the state of domicile would not be required to give full faith and credit to such a judgment, and largely upon such basis decides the statute is unconstitutional insofar as it pertains to service upon nonresident executors.

The defendant urges that the agency created by a nonresident motorist driving in the State of suit is terminated by the principal's death. This contention is authoritatively answered by the Supreme Court in Young v. Masci, 289 U. S. 253, 259-260, 53 S.Ct. 599, 601, 77 L.Ed. 1158, as follows:

"The power of the state to protect itself and its inhabitants is not limited by the scope of the doctrine of principal and agent. The inadequacy of that doctrine to cope with the menacing problem of practical

...