Galloway v. Wyatt Metal & Boiler Works

• Decision Date: 03 December 1937
• Docket Number: 5555
• Parties: GALLOWAY v. WYATT METAL & BOILER WORKS
• Court: Court of Appeal of Louisiana — District of US

180 So. 206

GALLOWAY v. WYATT METAL & BOILER WORKS

No. 5555

Court of Appeal of Louisiana, Second Circuit.

December 3, 1937

Judgment annulled 181 So. 187.

Irion &amp Switzer, of Shreveport, for appellant.

Wilkinson Lewis & Wilkinson, of Shreveport, for appellee.

OPINION

TALIAFERRO Judge.

Plaintiff suffered physical injuries in a collision between the truck on which he was riding and one owned by defendant, a non-resident corporation, and seeks indemnification for said injuries by this action sounding in damages. The accident occurred in the north end of Caddo parish, and it is alleged that, at the time and place of happening, defendant's truck was using and was being operated on a highway of the state of Louisiana; and, this being true, subjected itself to the provisions of Act No. 86 of 1928, §1, as amended by Act No. 184 of 1932. Defendant was cited by service on the Secretary of State as is authorized by said acts.

Defendant excepted to the court's jurisdiction, ratione personae. Plaintiff appealed from judgment, based upon written reasons, sustaining the exception.

The plea to the jurisdiction has for its basis the alleged fact that the collision in which plaintiff was injured did not occur upon a public highway of the state.

The amended act, with title, reads:

"To amend and re-enact Section 1 of Act No. 86 of 1928, entitled: "An act providing for civil process against nonresidents in cases arising out of the operation of motor vehicles within the State of Louisiana.' (3)5C

"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 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, 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 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 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."

Plaintiff advances and earnestly argues three distinct reasons why the plea to the jurisdiction should be rejected, viz.: (1) That under the provisions of the act, to confer jurisdiction, the accident need not occur on a "public highway"; (2) that the use of a public highway when entering the state and in arriving at the scene of the accident, even though its locus be not on a public highway, is all that is needful to vest the court of such locus with jurisdiction; and (3) that, as a matter of fact, the locus of the accident is on a public highway of the state.

The first two of these propositions may be properly discussed and passed on together, because it seems obvious that, if the vesting of jurisdiction personam, under the act, is restricted to accidents or collisions occurring only "on the public highways of the state," jurisdiction does not attach when the locus of the accident or collision is not on such a highway, although it be a link in the route followed by the nonresident in reaching the locus of the accident. We think the unambiguous language of the act determinative of these two contentions. It provides in substance that the operation by a nonresident or his authorized agent of a motor vehicle on the "public highways of the State," whether after complying with legal requirements as a condition precedent to such operation or not, shall be deemed equivalent to appointment of the Secretary of State as agent of such non-resident for the service of process 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." There is sound reason for requiring that the locus of the accident or collision referred to be on a public highway of the state as an indispensable prerequisite to the attaching of jurisdiction personam. The validity of a service under acts of the character herein discussed depends upon this fact.

The constitutionality of acts of like or similar character to Act No. 86 of 1928, as amended, has several times been challenged on the ground that they violate the due process and interstate commerce clauses of the United States Constitution. The validity of such statutes has been upheld by the Supreme Court of the United States. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 633, 71 L.Ed. 1091; Kane v. New Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222; Hendrick v. Maryland, 235 U.S. 610, 35 S.Ct. 140, 59 L.Ed. 385. The constitutionality of these contested statutes was sustained upon the ground that, since Congress has not legislated on the subject, the states have the inherent right to prescribe uniform regulations necessary for public safety and order as regards the operation upon its highways of all motor vehicles, whether interstate or otherwise, and to this end may require compliance by nonresidents with definite rules as conditions precedent to the legal use of said highways. Such conditions, of course, may not be unreasonably discriminatory against the nonresident. The right of the states to so legislate is but the legitimate exercise of their police power.

In Hess v. Pawloski, supra, a statute of the state of Massachusetts was involved, from which our own act must have been taken, as they are almost identical in phraseology. The court, with Justice Butler as its organ, therein said: "Motor vehicles are dangerous machines, and, even when skillfully and carefully operated, their use is attended by serious dangers to persons and property. In the public interest the state may make and enforce regulations reasonably calculated to promote care on the part of all, residents and nonresidents alike, who use its highways. The measure in question operates to require a nonresident to answer for his conduct in the state where arise causes of action alleged against him, as well as to provide for a claimant a convenient method by which he may sue to enforce his rights. Under the statute the implied consent is limited to proceedings growing out of accidents or collisions on a highway in which the nonresident may be involved. It is required that he shall actually receive and receipt for notice of the service and a copy of the process. And it contemplates such continuances as may be found necessary to give reasonable time and opportunity for defense. It makes no hostile discrimination against nonresidents, but tends to put them on the same footing as residents. Literal and precise equality in respect of this matter is not attainable; it is not required. Canadian Northern R. Co. v. Eggen, 252 U.S. 553, 561, 40 S.Ct. 402, 64 L.Ed. 713, 716. The state's power to regulate the use of its highways extends to their use by nonresidents as well as by residents. Hendrick v. Maryland 235 U.S. 610, 622, 35 S.Ct. 140, 59 L.Ed. 385, 390. And, in advance of the operation of a motor vehicle on its highway by a nonresident the state may require him to appoint one of its officials as his agent on whom process may be served in proceedings growing out of such use."

It will be observed from this quotation from the opinion that the question of jurisdiction turns upon whether the accident or collision occurred upon a highway of the state. If it did not so occur, then it is obvious that the statute does not and cannot affect the matter one way or the other.

Plaintiff invokes the familiar canon of construction that in construing legislative enactments, and in applying them to given state of facts, the lawmaker's intent and the motive actuating it should be sought, and argues that if this is done, the conclusion must be reached that the Legislature's intent and purpose in adopting said act is definitely reflected from its title. It will be observed that the language of this title is broader than the language of the act itself, but the title forms no part of the act. It may be considered in seeking legislative intent when the intent is not clearly expressed in the act. Hughes, Tax Collector, v. Rudd, 178 La. 588, 152 So. 300. This title says, "in cases arising out of the operation of motor vehicles within the State of Louisiana"; while the act says, in cases of accident or collision "on the public highways of the State of Louisiana." The lesser is included in the greater. The public highways of the state, of course, are within the state, but there are highways in the state not owned by it. The act...