Day v. Bush

• Decision Date: 14 January 1932
• Docket Number: 4244
• Citation: 18 La.App. 682,139 So. 42
• Court: Court of Appeal of Louisiana — District of US
• Parties: DAY v. BUSH ET AL

139 So. 42

18 La.App. 682

DAY v. BUSH ET AL

No. 4244

Court of Appeals of Louisiana, Second Circuit, Second Division

January 14, 1932

Rehearing Refused February 16, 1932.

Writs of Certiorari and Review Refused by Supreme Court February 29, 1932.

Appeal from First Judicial District Court, Parish of Caddo. Hon Robert Roberts, Judge.

Action by Mrs. Clora S. Day against E. J. Bush et al.

There was judgment sustaining exception to the jurisdiction filed by E. J. Bush, and plaintiff appealed.

Judgment affirmed.

Irion &amp Switzer and Thos. M. Comegys, Jr., of Shreveport, attorneys for plaintiff, appellant.

Jackson & Smith, of Shreveport, attorneys for defendants, appellees.

TALIAFERRO J. Argued before DREW, CULPEPPER, JJ.

OPINION

TALIAFERRO, J.

Plaintiff alleges that the defendant E. J. Bush is a non-resident of the state of Louisiana, and that his agent and/or employee, J. A. Woods, a resident of Caddo parish, La., while operating an automobile, owned by said Bush, negligently and carelessly, in the city of Shreveport, La., ran into her car and caused damage and injury to her, for which she sues both of them. She predicates her right to sue Bush in the district court of Caddo parish upon Act No. 86 of 1928, which is as follows:

"An Act providing for civil process against non-residents in cases arising out of the operation of motor vehicles within the State of Louisiana.

"Section 1. Be it enacted by the Legislature of Louisiana, That the acceptance by non-residents of the rights and privileges conferred by existing laws to operate motor vehicles on the public highways of the State of Louisiana, or the operation by a non-resident or his authorized chauffeur of a motor vehicle on the said highway other than under said laws, shall be deemed equivalent to an appointment by such nonresident of the Secretary of the State of Louisiana, or his successor in office, to be his true and lawful attorney for service of process, upon whom may be served all lawful processes in any action or proceeding against said non-resident growing out of any accident or collision in which said non-resident may be involved while operating a motor vehicle on such highways, or while same is operated by his authorized chauffeur; and said acceptance or operation of said vehicle 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 if served on him personally.

"Section 2. The service of such process shall be made by serving a copy of the petition and citation on the Secretary of State, or his successor in office, and such service shall be sufficient service upon said non-resident; provided that notice of such service, together with a copy of the petition and citation are forthwith sent by registered mail by the plaintiff to the defendant, or are actually delivered to the said defendant, and defendant's return receipt, in case notice is sent by registered mail, or affidavit of the party delivering the petition and citation in case notice is made by actual delivery, is filed in the proceedings before judgment can be entered against said non-resident. The Court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action."

Service was made on Bush in the manner provided in the act, and he appeared, through counsel, and excepted to the jurisdiction of the court, rationae personae. Service could not be made on Woods and he is not before the court now. The exception was sustained and the suit dismissed. Plaintiff appealed.

Plaintiff alleges that J. A. Woods, at the time of the accident, was engaged in the sale of tobacco and other commodities for defendant Bush, and acting within the scope of his employment and/or agency.

It is not alleged that Bush has ever been in the state of Louisiana, nor that Woods was to any extent under his control or direction at time of the alleged accident. It is not even alleged that Woods was the chauffeur of Bush when the accident occurred. The nature of Woods' engagement to Bush is not mentioned beyond the bare allegation that he sold "tobacco and other articles" for him.

We are called upon to interpret the Act of 1928 in the light of the facts of this case, as alleged by plaintiff, and particularly the word "chauffeur" contained therein.

To hold that the district court of Caddo parish has jurisdiction to hear and determine the merits of this suit against Bush is to hold that every non-resident who has an agent, employee, or other person engaged to him by employment in this state, who travels in the employer's automobile on the public highways in the pursuit of his business, may be impleaded in the courts of the state and forced to appear therein,...