Fazio v. American Automobile Insurance Company

• Decision Date: 15 December 1955
• Docket Number: Civ. No. 5119,5120.
• Citation: 136 F. Supp. 184
• Parties: Charles FAZIO, Individually, and for the Use and Benefit of His Minor Son David Ray Fazio v. AMERICAN AUTOMOBILE INSURANCE COMPANY, Mrs. Emma Y. Pierce, and Fred D. Lose, in His Capacity as Executor of the Estate of Mrs. Nellie M. Mosby. Joe MOORE v. AMERICAN AUTOMOBILE INSURANCE COMPANY, Mrs. Emma Y. Pierce, and Fred D. Lose, in His Capacity as Executor of the Estate of Mrs. Nellie M. Mosby.
• Court: U.S. District Court — Western District of Louisiana

136 F. Supp. 184

Charles FAZIO, Individually, and for the Use and Benefit of His Minor Son David Ray Fazio v. AMERICAN AUTOMOBILE INSURANCE COMPANY, Mrs. Emma Y. Pierce, and Fred D. Lose, in His Capacity as Executor of the Estate of Mrs. Nellie M. Mosby.

Joe MOORE v. AMERICAN AUTOMOBILE INSURANCE COMPANY, Mrs. Emma Y. Pierce, and Fred D. Lose, in His Capacity as Executor of the Estate of Mrs. Nellie M. Mosby.

Civ. Nos. 5119, 5120.

United States District Court W. D. Louisiana, Shreveport Division.

December 15, 1955.

Wellborn Jack, Shreveport, La., for plaintiffs.

Jackson, Mayer & Kennedy, Shreveport, La., for defendants.

Harold K. Wood, Westchester, Pa., for Mrs. Emma Y. Pierce.

Blanchard, Goldstein, Walker & O'Quin, Shreveport, La., for Fred D. Lose.

DAWKINS, Jr., Chief Judge.

Presented for decision is the question of whether valid service was effected, and jurisdiction of the person obtained, in two related civil damage suits brought by Louisiana citizens against the foreign executor of the estate of a nonresident motorist who was involved in an automobile accident while using the highways of this State.

The accident occurred on September 6, 1954, on U. S. Highway 71 in Bossier Parish, Louisiana. At that time and place, Joe Moore, one of the plaintiffs, was driving a Chevrolet in a southerly direction on the highway. Riding with him as a passenger was David Ray Fazio, a minor who is represented here by his father.¹ A Cadillac proceeding in the opposite direction, owned and occupied by Nellie M. Mosby, a citizen and resident of Kansas, but being operated by Emma Y. Pierce, a citizen and resident of Pennsylvania, collided with the Chevrolet, causing injuries to Moore and young Fazio.

The complaints allege that the accident resulted solely and proximately from Mrs. Pierce's negligence, which they claim is legally attributable to Mrs. Mosby, as respondeat superior. Because of this, plaintiffs contend they are entitled to recover damages from Mrs. Pierce, Mrs. Mosby and their liability insurer.²

The insurer is qualified to do business in Louisiana, and was served properly through its designated agent, the Secretary of State. Mrs. Pierce also was served through that official, and was given the requisite notice by registered mail. Neither of these defendants questions the validity of service, or jurisdiction, and both have answered, denying liability.

Mrs. Mosby was killed instantly in the accident. Substituted service upon her estate was attempted by serving the Secretary of State, and by mailing the registered notice to Fred D. Lose, a citizen and resident of Kansas, who has qualified there as executor of the estate. He has appeared specially in each suit and moved to dismiss for insufficiency of service of process, and for lack of jurisdiction over his person.

The motions thus require an interpretation of the Louisiana Non-Resident Motorist Statute, LSA-R.S. 13:3474, 13:3475, reading as follows:

LSA-R.S. 13:3474 — "Operation of motor vehicle by non-resident as appointment of Secretary of State as agent for service of process

"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 employee of a motor vehicle on the said highways other than under said laws, shall be deemed equivalent to an appointment by such non-resident of the Secretary of the State of Louisiana or his successor in office or some other person in his office during his absence he may designate, to be his true and lawful attorney for service of process, upon whom may be served all lawful process in any action or proceeding against the non-resident growing out of any accident or collision in which the non-resident may be involved while operating a motor vehicle on such highways, or while same is operated by his authorized employee; 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. As amended Acts 1954, No. 136, § 1."

LSA-R.S. 13:3475 — "Service on Secretary of State; sending or delivering notice and copies; filing receipt or affidavit; continuances

"The service of the process authorized by R.S. 13:3474 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 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."

It will be noted at once that this statute makes no express provision for substituted service upon executors or administrators of foreign estates. The question is, accordingly: Does a fair interpretation of the statute reveal that the Legislature intended such representatives to be subject to it? We think not.

Statutes of this type — made necessary by the peripatetics of our population in the automobile age — have negatived to a large extent the fundamental teachings of ...