Duncan v. Ashwander

• Decision Date: 02 September 1936
• Docket Number: No. 2638.,2638.
• Citation: 16 F. Supp. 829
• Parties: DUNCAN v. ASHWANDER et al.
• Court: U.S. District Court — Western District of Louisiana

16 F. Supp. 829

DUNCAN v.ASHWANDER et al.

No. 2638.

District Court, W. D. Louisiana, Monroe Division.

September 2, 1936.

Hudson, Potts & Bernstein, of Monroe, La., for plaintiff.

W. A. Walker, Jr., of Monroe, La., and John C. Hollingsworth, of New Orleans. La., for defendants.

DAWKINS, District Judge.

This action for damages for personal injuries was brought in the state court by a resident and citizen of this state, originally against George Ashwander, a citizen of Alabama, and the Commercial Casualty Company(hereinafter called the Casualty Company), a New Jersey corporation, insurer under a public liability policy issued to Ashwander.Jurisdiction was claimed under the provisions of the Acts of the Louisiana Legislature, No. 86 of 1928 and No. 184 of 1932(amendingsection 1 of act of 1928) authorizing suits against non-residents for damages "growing out of any accident or collision in which said nonresident may be involved" on the highways of the state, and providing for service through the secretary of state, who in turn is required to send the process to the defendant by registered mail.

Exception to the jurisdiction was filed by the Casualty Company and evidence taken in Alabama to show that an action would not lie against it under the law of that state until a judgment had first been obtained against its insured.Thereafter, and before the exception had been submitted, plaintiff amended his petition by making Ralph Ashwander, the sixteen year old son, an individual defendant, as the driver of the automobile of his father.On October 7, 1935, the exception to the jurisdiction was tried and submitted, it being agreed that Ralph Ashwander was a minor, sixteen years of age, both of whose parents were living, while depositions and documentary evidence were likewise offered.On October 18th plaintiff filed a second amended petition, attempting to bring the said minor into court through his father, as natural tutor, administrator, or guardian.On November 12, 1935, exceptions of no cause of action and to the jurisdiction were filed by defendantGeorge Ashwander, both in his own behalf and for his said son, as well as pleas of minority and misjoinder.The Casualty Company also filed exceptions to the jurisdiction rationæ personæ et materiæ, and, in the alternative, attacked the constitutionality of the Louisiana statutes.Subsequently, all exceptions and pleas were orally argued and submitted on briefs.

The pleas and exceptions will be disposed of in the order as they affect the rights of Ashwander, his son, and the Casualty Company.

1.Exceptions of George Ashwander.The first appearance by this defendant after removal of the case to this court was by exceptions rationæ personæ and rationæ materiæ, in which he alleged that he is a resident, citizen and domiciled in the state of Alabama, and likewise "a citizen of the United States," whose right to travel in the state of Louisiana, free from conditions imposed by state laws, are protected by the provisions of section 2, art. 4, the Fifth and Fourteenth Amendments of the Constitution of the United States, and section 2, art. 1, of the Constitution of Louisiana.In the alternative, that the attempt to bring him into the courts of this state by service upon the secretary of state was illegal, and he pleaded specially that the ActNo. 156 of the Louisiana Legislature of 1934 repealed the provisions of ActsNos. 86 of 1928 and 184 of 1932.Further, in the alternative, defendant pleaded the unconstitutionality of said acts of 1928 and 1932 under the provisions of the Federal and State Constitutions, above recited.

Subsequently George Ashwander filed separate exceptions to each of the amended petitions, in which he substantially reiterated the grounds pleaded in the first exception and, in addition, that the attempted citation of Ralph Ashwander, his father, "is violative of George Ashwander individually and as father of Ralph Ashwander's constitutional privileges above set forth, and exceptor, George Ashwander, admittedly was not operating said automobile at the time set forth in plaintiff's petition, nor was it being operated by his chauffeur, or authorized employee of George Ashwander, nor was Ralph Ashwander suable in the State of Louisiana by the laws of Alabama, and under his constitutional protection and privileges suable through George Ashwander on account of any accidental injuries occurring in the State of Louisiana," etc.

The pertinent provisions of the ActNo. 86 of the Louisiana Legislature of 1928 are quoted in the opinion of this court in the case of Moore v. Payne et al. (D.C.)35 F.(2d) 232.The only change made by the ActNo. 184 of 1932 was to substitute the word "employee" for "chauffeur," for the reason the state court had held a nonresident employer could not be sued for injury or damage caused by a traveling salesman operating a car in the course of his employer's business over the Louisiana highways, since he was not a chauffeur within the meaning of the act of 1928.

As to the contention that the ActNo. 156 of 1934 repealed the provisions of the two earlier statutes above referred to, it is sufficient to say that it is a settled rule of law that general statutes do not repeal special acts, unless the purpose to do so is clear and unmistakable.59 C.J.pp. 931 et seq., and 936;In re Morgan's Louisiana & Texas R. & S. S. Co., 117 La. 593, 42 So. 150;Welch v. Gossens, 51 La.Ann. 852, 25 So. 472;State v. Labatut, 39 La.Ann. 513, 516, 2 So. 550;Beridon v. Barbin, 13 La.Ann. 458;Loisel v. Mortimer (C.C.A.)277 F. 882.The act of 1934 was an amendment of article 165 of the State Code of Practice, dealing with service of process generally; whereas the acts of 1928 and 1932 deal with the special subject of a remedy against nonresidents, who cause injury or damage through the operation of motor vehicles on the highways of the state.There is no inconsistency or conflict and each can operate as efficiently as they did before the amendment of the codal provision.

I do not deem it necessary to repeat what was said in Moore v. Payne, supra, as to the constitutionality of this legislation.The doctrine announced there has since again been upheld by the Supreme Court in Doherty & Co. v. Goodman, 294 U.S. 623, 55 S.Ct. 553, 79 L.Ed. 1097.Counsel for defendants has cited and quoted at length from the case of Colgate v. Harvey, 296 U.S. 404, 56 S.Ct. 252, 80 L.Ed. 299, 102 A.L.R. 54.I cannot see the pertinency of this case, which deals with the subject of income taxes and in no way affects the holdings by the Supreme Court in the cases cited in Moore v. Payne.

It is also contended, as the basis of the exception of no cause of action, that the facts alleged do not bring George Ashwander within the provisions of the statestatute, in that the amendment of 1932 applies only if the car is driven by the owner or his "authorized employee," and in this instance it was driven by Ashwander's minor son, who was not employed as chauffeur or agent.The petition as amended discloses that Ashwander was riding in his car, with his son driving, and presumably on the former's mission or business, and I think his presence and consenting, if he did not actually...