Dealer's Transport Co. v. Reese
| Citation | 138 F.2d 638 |
| Decision Date | 15 December 1943 |
| Docket Number | No. 10759.,10759. |
| Parties | DEALER'S TRANSPORT CO. v. REESE. CLARK v. SAME. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
D. M. Powell, of Greenville, Ala., for appellants.
Richard T. Rives, of Montgomery, Ala., and Carlton L. Perdue, of Hayneville, Ala., for appellees.
Before SIBLEY, McCORD, and WALLER, Circuit Judges.
Dealer's Transport Company, an Illinois corporation, hereinafter referred to as "the Corporation", is engaged chiefly in the business of transporting motor vehicles from factories to dealers. While engaged in transporting trucks belonging to the United States Army, as an agent of the Corporation, the co-appellant, James Olan Clark, drove one of the trucks against a wagon on a public highway of the State of Alabama, causing injury to one, and the death of two, occupants of the wagon. Trial in the court below resulted in verdicts and judgments against the appellants, from one of which appeal is prosecuted.
We have been furnished with briefs in large number and length, but the only substantial issue of law is whether or not the lower court committed error in overruling the corporate appellant's motion to quash the process.
Corporate defendant was served with process under Section 199, Title 7, of the Alabama Code, which purports to authorize constructive service upon the Secretary of State for non-resident owners or operators of a motor vehicle on the public highways of Alabama in any action growing out of any accident or collision upon the public highway, etc. The pertinent part of the statute is as follows: "The operation by a nonresident of a motor vehicle on a public highway in this state (or the operation on a public highway in this state of a motor vehicle owned by any nonresident and being operated by such nonresident, or his, their or its agent) shall be deemed equivalent to an appointment by such nonresident of the secretary of state of the State of Alabama, or his successor in office, to be such nonresident's true and lawful agent or attorney upon whom may be served the summons and complaint in any action against such nonresident growing out of any accident or collision in which such nonresident may be involved while operating a motor vehicle on such public highway; or in which such motor vehicle may be involved while being operated on such public highway within the State of Alabama." (Parentheses added by the Court for simplification of discussion.)
In support of the motion to set aside or quash the process against the Corporation, it was urged, that the Corporation had not qualified to do business in the State of Alabama and had no agent in Alabama upon whom process could be served; that at the time of the accident the corporate defendant was not personally operating the truck which was alleged to have caused the injuries; that the truck in question was the property of the United States Government; that said defendant was not the owner of the truck and was not at the said time operating the truck as owner, either personally or by its agent, and the statute was not sufficiently broad to authorize service on the Corporation.
Defendant Clark was an employee of the Corporation and was the driver of the Army truck which produced the injuries. Several trucks were being driven by employees of the Corporation from Ft. McPherson, Georgia, to New Orleans, Louisiana, at the employment and instance of the Army and for redelivery at New Orleans to the Army, and were the property of the United States. The Corporation, for a consideration, and as a common carrier, was transporting the trucks as a part of its usual course of business and within its corporate powers. The driver of the truck was in and about the business of the Corporation at the time of the collision.
Under the motion to quash process the lower court was, and this court now is, called upon to decide whether or not the Alabama statute was broad enough to authorize such constructive service on the Corporation. We think it was.
By treating the disjunctive,...
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