Brown v. Cleveland Tractor Co.

• Decision Date: 19 December 1933
• Docket Number: No. 69.,69.
• Citation: 251 N.W. 557,265 Mich. 475
• Parties: BROWN v. CLEVELAND TRACTOR CO.
• Court: Michigan Supreme Court

265 Mich. 475

251 N.W. 557

BROWN

v.CLEVELAND TRACTOR CO.

No. 69.

Supreme Court of Michigan.

Dec. 19, 1933.

Appeal from Circuit Court, Delta County; Frank A. Bell, Judge.

Action by William Brown against the Cleveland Tractor Company. From an order denying its motion to set aside the service on it, defendant appeals.

Reversed.

Argued before the Entire Bench.

WEADOCK, J., dissenting.

Thos. J. Rushton and H. J. Rushton, both of Escanaba, and Kerr, Lacey & Scroggie, of Detroit, for appellant.

Yelland & Yelland, of Escanaba, for appellee.

FEAD, Justice.

I cannot concur in the opinion of Mr. Justice WEADOCK.

Defendant is an Ohio corporation, manufacturing and selling tractors. Charles H. Wilt was its service mechanic, employed by it to travel in several states and make needed repairs and adjustments on tractors. Wilt was under orders of the company, but could travel by train or his own automobile at his pleasure, and, when using his own car, he was allowed seven cents a mile as expense money.

The action is brought for damages resulting from a collision between Wilt's car, while driven by him on defendant's business, and plaintiff's car. Service was made on both Wilt and defendant under C. L. 1929, § 4790, and also on defendant through an alleged agent in Michigan, Marcus S. McNabb. No personal service of process was made within the state of Michigan on defendant, or on Wilt individually, or on Wilt as agent of defendant under C. L. 1929, § 14094. Defendant reviews denial of motion to set aside the service on it.

The title and relevant portion of section 4790 read:

‘An act to provide for the service of process in civil actions upon non-resident operators or non- resident owners of motor vehicles operated upon the highways of this state under certain conditions.

‘Section 1. From and after the effective date of this act, the operation by a non-resident of a motor vehicle upon a public highway of this state shall be deemed equivalent to an appointment by such non-resident of the secretary of state to be his true and lawful attorney, upon whom may be served the summons in any action against him, growing out of any accident or collision in which such non-resident may be involved while operating a motor vehicle on such a public highway. Such operation shall be deemed a signification of his agreement that any such summons against him which is so served shall have the same legal force and validity as if served on him personally within this state,’ etc.

It is conceded that all the requirements of the statute for service were complied with. The question is whether defendant was ‘operating’ Wilt's car at the time of the accident.

The statute is in derogation of common right, must be strictly construed, and cannot be extended by implication to include persons not coming within its terms. Day v. Bush, 18 La. App. 682, 139 So. 42;Morrow v. Asher (D. C.) 55 F.(2d) 365.

The words ‘operation’ and ‘operating’ may mean many things. The other motor statutes do not aid us because they employ the words as meaning acts of the owner or of the driver, according to the contract. However, neither by statute, C. L. 1929, § 4632, subd. (c), § 4658, subd. (c), § 4693, subd. (m), nor at common law, was defendant the owner of the Wilt car.

Nearly all the states have adopted acts for substituted service on nonresident motorists, 82 A. L. R. 769, and, of course, the statutes differ. The quoted portion of our act is identical with the New York law so we may assume it was taken therefrom.

The question is not before us whether the statute would permit substituted service on a nonresident corporation conducting a bus or truck service or the like, operated under direct supervision and ordered routes, Bessan v. Public Service Co-Ordinated Transport, 135 Misc. 368, 237 N. Y. S. 689;Poti v. New England Road Machinery Co., 83 N. H. 232, 140 A. 587; nor, indeed, on any nonresident corporation owner of a car driven by its servant, Bischoff v. Schnepp, 139 Misc. 293, 249 N. Y. S. 49.

In New York it is settled that a nonresident individual whose car is driven with his consent, but not by his servant, is not subject to the substituted service, because the word ‘operate’ signifies ‘a personal act in working the mechanism of the car.’ O'Tier v. Sell, 252 N. Y. 400, 169 N. E. 624, 625;Jones v. Newman, 135 Misc. 473, 239 N. Y. S. 265;Zurich, etc., Co. v. Brooklyn, etc., Corp., 137 Misc. 65, 241 N. Y. S. 465;Gesell v. Wells, 229 App. Div. 11, 240 N. Y. S. 628. And in Wallace v. Smith, 238 App. Div. 599, 265 N. Y. S. 253, 256, a case in point, it was held that a foreign corporation, not the owner of the car, is not subject to the statutory service where the car was driven by its agent who owned the car. The court said: ‘The law permitting service by the means suggested may be necessary in certain cases. * * * If it is to be extended so that it will cover a case of this character, it may be subject to great abuse. A person or corporation which is neither the owner nor operator of a car may be called to some distant state to defend a personal injury action on the allegation that a person operating a car in that state was doing so as the agent of the person or corporation. * * * The statute was never intended for any such purpose.’

In Josephson v. Siegel, 110 N. J. Law, 374, 165 A. 869, also in point, a similar ruling was made, and in Morrow v. Asher (D. C.) 55 F.(2d) 365, and in Day v. Bush, 18 La. App. 682, 139 So. 42, it was held that an individual nonresident owner is not subject to the substituted service, although his car was being driven by his employee.

It is desirable that statutes for substituted service on motorists shall have uniformity of construction, as far as...