Crawford v. Carson
Decision Date | 10 November 1953 |
Docket Number | No. CC807,CC807 |
Citation | 138 W.Va. 852,78 S.E.2d 268 |
Court | West Virginia Supreme Court |
Parties | , 38 A.L.R.2d 1191 CRAWFORD, v. CARSON et al. |
Syllabus by the Court
1. Chapter 47, Acts of the Legislature, 1937, Regular Session, relates only to service of process on persons coming within its provisions and does not modify or extend statutes or common law principles concerning venue.
2. Venue of an action exists by virtue of law. The residence of a plaintiff, without more, is not a valid ground of venue in the absence of a statute or other principle of law authorizing it, as provided in Code, 56-1-1, subparagraph (b).
Linn Mapel Brannon, Weston, for plaintiff.
Steptoe & Johnson, and Kingsley R. Smith, Clarksburg, for defendants.
This case comes to this Court on certificate from the Circuit Court of Lewis County.
Morton Hayes Crawford instituted an action of trespass on the case against R. E. Carson and Packard Motor Car Company, a corporation, in the Circuit Court of Lewis County. Process was issued by the Clerk of the Circuit Court of Lewis County. Service of the process was accepted by the Auditor of the State of West Virginia, under the provisions of Chapter 47, Acts of the Legislature, 1937, Regular Session.
The action is based on a collision between a motor vehicle owned and operated by the plaintiff, and a similar vehicle owned by the corporate defendant, on a public road in Harrison County, West Virginia, designated as U. S. Route 19.
Plaintiff avers in his declaration that the defendant, Carson, was at the time of the collision an agent, servant and employee of the corporate defendant, and was acting in behalf of such corporate defendant at the time of the accident. The declaration charges that the collision occurred as a result of the unlawful and negligent operation of a motor vehicle owned by the corporate defendant and driven by the individual defendant. The collision between the two motor vehicles resulted in personal injury to the plaintiff and considerable damage to his motor vehicle. Plaintiff claims $2500 damages.
Defendants appeared specially and filed a plea in abatement, alleging in substance that the Packard Motor Car Company is a nonresident corporation, incorporated under the laws of the State of Michigan, having its principal place of business in that state, and having no office nor place of business in Lewis County, West Virginia that the corporate defendant is not engaged in any business in Lewis County; that no agent, director or officer is in Lewis County upon whom process could be served, and that before and at the time of the commencement of this action, the defendant, Carson, was a resident of Pittsburgh, Pennsylvania, and was not at the time of the accident a resident of Lewis or any other county in West Virginia. By an amendment to the plea in abatement, the defendants aver that neither of the defendants had any estate or debts due them in Lewis County at the time of the institution of this action, or since.
The plaintiff demurred to the plea in abatement and assigned as grounds of such demurrer that the action is transitory and that the action may be brought wherever the defendants were found and process served. Further, that the defendants being nonresident operators of a motor vehicle in the State of West Virginia, operating a motor vehicle over the roads of this state, constitute the Auditor of this State their duly authorized attorney, upon whom process may be served, and the service so obtained by process, having been accepted by the Auditor for and on behalf of said nonresident defendants, confers jurisdiction on the Circuit Court of Lewis County; that Lewis County is the proper place to bring this action and that venue is not confined to the county in which the cause of action arose.
The defendants contend that Chapter 47, Acts of the Legislature, 1937, Regular Session, only relates to the service of process, and that such statute in nowise affects the venue of this action.
The Circuit Court overruled the demurrer to the plea in abatement and certified two questions substantially as follows: (1) Is Lewis County the proper venue for this action and does the Circuit Court of that County have jurisdiction? (2) Does Chapter 47, Acts of the Legislature, 1937, Regular Session, confer jurisdiction or fix venue for this action on the ground that the plaintiff resides therein?
The basic question here involved turns on the provisions of Chapter 47, Acts of the Legislature, 1937, Regular Session, reading in part as follows: 'The operation by a non-resident, or by his duly authorized agent, of a motor vehicle upon a public street, road or highway of this state, shall be deemed equivalent to an appointment by such non-resident of the state auditor, or his successor in office, to be his true and lawful attorney upon whom may be served all lawful process in any action or proceeding against him, in any court of record in this state, including action or proceeding brought by non-resident plaintiff or plaintiffs, growing out of any accident or collision in which such non-resident may be involved while so operating or so permitting to be operated a motor vehicle on any such street, road or highway, and such operation shall be a signification of his agreement that any such process against him, which is served in the manner hereinafter provided, shall be of the same legal force and validity as process duly served upon him in this state.' '* * * Provided, That notice of such service and a copy of the process shall forthwith be sent by registered mail, return receipt requested, by said auditor to the defendant, * * *.'
The trial court is authorized by another provision to order such continuances as may be proper to give to the defendant an opportunity of defending the action. Other provisions of the statute relate to the definitions of words and phrases used therein.
A similar statute was held constitutional in the case of Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091. See Marcum v. State Automobile Mutual Ins. Co., 134 W.Va. 144, 149, 59 S.E.2d 433.
Objections to a somewhat similar statute are set forth in the case of Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446. The objections noted in the Wuchter case to a statute passed by the Legislature of the State of New Jersey were grounded on the failure of the New Jersey statute to require that information of the pending action be imparted to the nonresident defendant. As will be seen from the foregoing the statute here considered provides for giving information of the pendency of an action to a nonresident defendant.
The provisions contained in the statute requiring the State Auditor to mail the notice of service of process to the defendant make it 'reasonably probable' that notice of service of process would be communicated to a nonresident defendant. See Wuchter v. Pizzutti, supra. We hold that Chapter 47, Acts of the Legislature, 1937, Regular Session, is constitutional.
The foregoing statute is clear, without ambiguity and does not admit of judicial construction. But being in derogation of common law, it should be strictly applied and no extension of it may be made by implication, so as to include persons and situations not coming within its purview. Brown v. Cleveland Tractor Co., 265 Mich. 475, 251 N.W. 557; Flynn v. Kramer, 271 Mich. 500, 261 N.W. 77; Rose v. Gisi, 139 Neb. 593, 298 N.W. 333; Commonwealth of Kentucky, for Use and Benefit of Kern v. Maryland Casualty Co., 6 Cir., 112 F.2d 352; 5 Am.Jur., Automobiles, § 591. Giving effect to the rule of strict application, a casual reading of the statute discloses that it concerns the service of process only and does not, in any way, relate to the fixing of venue. It may be said however, that subparagraph (d) of Section 31, reading as follows: 'The provision for service of process herein is cumulative and nothing herein contained shall be construed as a bar to the plaintiff in any action from having process in such action served in any other mode and manner provided by law', indicates that the legislative intent in enacting the statute did not include any change in the statutes relating to venue, and that Chapter 47 id. is confined to service of process alone. It has been held in other jurisdictions that similar statutes do not relate to venue of an action in the absence of a provision in the statute dealing with that subject. Mann v. Humphrey's Adm'x, 257 Ky. 647, 79 S.W.2d 17, 96 A.L.R. 584; Courtney v. Meyer, 202 S.C. 437, 25 S.E.2d 481; Williams v. Meredith, 326 Pa. 570, 192 A. 924, 115 A.L.R. 890; Carter v. Schackne, 173 Tenn. 44, 114 S.W.2d 787. See Annotation 115 A.L.R. 893 et seq.
Chapter 47, idem, makes no provision relative to venue, except subparagraph (d) of Section 31, hereinabove quoted. Such statute does not, in any way, add to, take from, or extend the general statutory provisions relating to venue of transitory actions
'In modern legal phraseology 'venue' means the place, that is the county or district, wherein a cause is to be tried; the term was originally employed to indicate the county from which the jury was to come.' * * *'56...
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