Clemens v. District Court of City and County of Denver, 20618

Citation390 P.2d 83,154 Colo. 176
Decision Date17 February 1964
Docket NumberNo. 20618,20618
PartiesMerlin G. CLEMENS and Barbara Bowers, Petitioners, v. The DISTRICT COURT OF the CITY AND COUNTY OF DENVER, Honorable Don D. Bowman, Judge of said Court, Samuel G. Whatley and Rose Marie Whatley, Respondents.
CourtColorado Supreme Court

Wood, Ris & Hames, Thomas T. Crumpacker, Denver, for petitioners.

Joseph N. Lilly, Denver, for respondent Don D. Bowman.

Morris Rifkin, Robert J. Ring, Denver, for respondents Samuel G. Whatley and Rose Marie Whatley.

Norman E. Berman, Denver, on behalf of himself and the Association of Colorado Claimants' Attorneys, amicus curiae.

HALL, Justice.

On August 7, 1962, Samuel G. Whatley and Rose Marie Whatley commenced an action in the District Court of the City and County of Denver wherein they sought to recover damages for injuries allegedly suffered in an automobile collision in Denver on September 29, 1961. They named as defendants Barbara Bowers, owner, and Merlin G. Clemens, driver of the vehicle which collided with the Whatley vehicle.

Service of process upon the defendants was undertaken pursuant to Chapter 75, Session Laws 1961, being CRS '53, as amended, 13-8-5 to 13-8-10 inclusive, which, among other things, provides:

'13-8-5.--Definition of terms.--When used in sections 13-8-5 through 13-8-10, the following terms shall have the following meanings:

'(1) A 'driver' is the owner or operator of a motor vehicle.

'(2) An 'accident' is any occurrence in the state of Colorado involving a motor vehicle which results in damage to property or injury or death to a person.

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* * *

'13-8-8.--Service of process.--When any civil action which pertains to an accident is commenced * * * the court shall, upon verified motion giving the last known address of the defendant and setting forth the circumstances by which the plaintiff is entitled to serve the secretary of state in accordance with the provisions of this article and upon finding that such service is proper, enter an order ex parte setting forth the last known address of the defendant and authorizing service to be made on the secretary of state. Service shall be made by delivering two copies of the process, complaint, motion and order of court to the secretary of state, his deputy or assistant, * * *. Notice of such service and a copy of each instrument so served shall forthwith be sent by the secretary of state by certified or registered mail, addressed to the defendant at his address given in the order of court, with return receipt requested. Promptly after such mailing the secretary of state shall file with the clerk of the court a certificate showing such mailing. Service shall be complete thirty days after service of process on the secretary of state as herein provided.' (Emphasis supplied.)

Prior to the expiration of thirty days after service of process upon the secretary of state, the defendants appeared specially and moved to quash the service of process and the return, contending generally that procedures pursued were not such as to bring them within the jurisdiction of the court, and that Chapter 75 is unconstitutional. The district court denied the motion, whereupon the defendants brought this original proceeding, wherein we are called upon to determine whether service of process, had in conformity with said Chapter 75, vested the court issuing such process with jurisdiction over the persons so served as to warrant the entry of a judgment in personam against them or either of them.

We find the language contained in 13-8-5 as applied to the facts here presented as pure fiction. To define a 'driver' as the 'owner' or the 'owner' as the 'driver' changes nothing. Often a driver, owner and operator are one and the same person. Often they are not.

In this case, Barbara Bowers is the owner, she is not the driver. Merlin G. Clemens is the driver, he is not the owner. In resolving the problems presented we treat the parties from the standpoint of realism, rather than fancy or fiction, as prescribed by Chapter 75.

In the case before us, Barbara Bowers has never been a resident of Colorado; she owns a motor vehicle which she loaned to Clemens; she did not drive the vehicle Clemens drove the same for his own purposes, not as agent for Barbara or for her benefit or in her behalf. She was not in the vehicle at the time of the accident and for all that appears in the record was not even in Colorado.

In the early case of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, it was said:

'* * * Process from the tribunals of one State cannot run into another State, and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the State where the tribunal sits cannot create any greater obligation upon the nonresident to appear. Process sent to him out of the State, and process published within it, are equally unavailing in proceedings to establish his personal liability.'

Since this pronouncement there have been vast changes in the law. The advent of motor vehicles and the use of highways by nonresident motorists, the ease of travel and other considerations have prompted legislative bodies and courts in certain situations to modify and relax the rules laid down in Pennoyer v. Neff, supra.

The United States Supreme Court, in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, has stated the tests to be applied in determining whether courts have or may acquire jurisdiction over nonresidents such as to warrant entry of a judgment in personam against them. There it is stated:

'Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant's person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565. But now that the capias ad respondendum has given was to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278. See Holmes, J., in McDonald v. Mabee, 243 U.S. 90, 91, 37 S.Ct. 343, 61 L.Ed. 608. Compare Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 316, 319, 63 S.Ct. 602, 604, 606, 87 L.Ed. 722. See Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375; Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091; Young v. Masci, 289 U.S. 253, 53 S.Ct. 599, 77 L.Ed. 1158.

* * *

* * *

'* * * Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations. Cf. Pennoyer v. Neff, supra; Minnesota Commercial Men's Ass'n v. Benn, 261 U.S. 140, 43 S.Ct. 293, 67 L.Ed. 573.'

The language in Chapter 75 providing for substituted service of process is broad enough to warrant resort to such service on a nonresident owner of a motor vehicle involved in an accident in Colorado where the owner has never been in Colorado, and where the owner has no contacts or ties, minimal or otherwise, with Colorado--the status of Barbara Bowers, defendant in the trial court.

In such a situation Colorado cannot, except by personal service of process on the defendant, in Colorado, acquire such jurisdiction over such nonresident owner as to vest the court with jurisdiction to enter a judgment in personam against her.

In Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283, it is stated:

'In personam jurisdiction. Appellees' stronger argument is for in personam jurisdiction over the Delaware trustee. They urge that the circumstances of this case amount to sufficient affiliation with the State of Florida to empower its courts to exercise personal jurisdiction over this nonresident defendant. Principal reliance is placed upon McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223. In McGee the Court noted the trend of expanding personal jurisdiction over nonresidents. As technological progress has increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase. At the same time, progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome. In response to these changes, the requirements for personal jurisdiction over nonresidents have evolved from the rigid rule of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, to the flexible standard of International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. See Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S.Ct. 1360, 1362, 1 L.Ed.2d 1456. Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the 'minimal contacts' with that State that are a prerequisite to its exercise of power over him. See International Shoe Co. v. State of Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 159, 90 L.Ed. 95.' (Emphasis supplied.)

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