Grote v. Rogers

• Decision Date: 13 March 1930
• Docket Number: 28.
• Citation: 149 A. 547,158 Md. 685
• Parties: GROTE v. ROGERS.
• Court: Maryland Court of Appeals

149 A. 547

158 Md. 685

GROTE v. ROGERS.

No. 28.

Court of Appeals of Maryland

March 13, 1930

Appeal from Superior Court of Baltimore City; Eugene O'Dunne Judge.

Action by Sophie Grote against Mrs. Charles Stanley Rogers. From an order quashing return of process, plaintiff appeals.

Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, and PARKE, JJ.

George Ross Veazey and Palmer R. Nickerson, both of Baltimore (Edwin W. Wells, of Baltimore, on the brief), for appellant.

Fendall Marbury, of Baltimore, for appellee.

URNER J.

This action for personal injuries, received in an automobile collision on a Maryland highway, was brought against the nonresident owner of the car alleged in the declaration to have been negligently driven against the one in which the plaintiff was a passenger, and the question to be determined on this appeal from an order quashing the return of process is whether chapter 254 of the Acts of 1929, providing for suits against nonresidents on causes of action arising from automobile accidents in this state, is a valid statute. It is said, among other objections, to be contrary to the due process clause of the Federal Constitution. The act provides as follows:

"The acceptance by a non-resident individual, firm or corporation of the rights and privileges of using the roads and highways of Maryland, which rights and privileges are conferred by Section 190 or any other law, as evidenced by his, their or its operation of a motor vehicle on any of the public highways within the limits of this State, shall be deemed equivalent to an appointment by such non-resident individual, firm or corporation of the Secretary of State, or his successor in office, to be his, their or its true and lawful attorney upon whom may be served all lawful processes in any action or proceeding instituted, filed or pending against him, them or it, growing out of any accident or collision in which said non-resident may be involved, while operating or causing to be operated, a motor vehicle on such public highway and said acceptance of the rights and privileges of using said highways or the operation of said motor vehicle by said non-resident individual, firm or corporation within this State, shall be a signification of his, their or its agreement that any such process against him, them or it which is so served shall be of the same legal force and validity as if served on him, them or it personally. Service of such process shall be made by leaving a copy of the process with a fee of $2.00 in the hands of the Secretary of state, or in his office, and such service shall be sufficient service upon the said non-resident individual, firm or corporation, and of full force and effect in any Court of this State; provided that notice of such service and a copy of the process shall forthwith be sent by registered mail by the plaintiff or his attorney to the defendant at his address as specified in such process; and such address shall be conclusively presumed to be correct if it be an address given by the defendant in any proceedings before any court magistrate or justice of the peace, or any police officer or deputy or any other person, at or subsequent to the collision or accident aforesaid, or if it be the latest address appearing upon the records of the Commissioner of Motor Vehicles or other officer charged with the administration of the motor vehicle laws of the State in which any motor vehicle is registered in the name of such defendant; and the plaintiff's or his attorney's affidavit of compliance herewith shall be filed with the Clerk of the Court in which the said proceedings are pending. The Court in which the action is pending may order such continuances as may be necessary to afford the defendant a reasonable opportunity to defend the action. The fee of $2.00 paid by the plaintiff to the Secretary of State at the time of service, shall be taxed in the costs of the proceedings and the Secretary of State shall keep a record of all such processes which shall show the day and hour of service, and he shall account for all funds so coming into his hands from such services, to the proper officer or department of this State."

The record includes an affidavit by the plaintiff's attorney that, in compliance with the statute, a copy of the process against the defendant was left with the secretary of state and a copy of the writ and of the declaration was sent by registered mail to the defendant at her address as specified in the process. It further appears from the record that the address thus specified was correct and that the defendant received the notice of the suit, as evidenced by the registered mail receipt which she signed and returned. But the efficacy of the notice to make her amenable to the suit for the purposes of a personal judgment depends upon the constitutionality of the statute under which it was communicated. Apart from the terms of a valid act authorizing the method of notification employed in this suit, the fact that it resulted in the receipt of actual knowledge by the nonresident defendant of the pendency and nature of the action would not enable the court, in the exercise of a competent jurisdiction, to proceed with the trial of the case without the defendant's participation. It has been determined by the highest judicial authority that process from the courts of one state cannot be used to summon parties domiciled in another state to respond to the action in which it is issued, and that whether the process against a nonresident is sent to him out of the state, or is published within the state of the forum, it is equally unavailing to impose upon him any obligation to appear in a proceeding to establish his personal liability. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.

Nonresidents of a state, who use its highways for automobile travel or traffic, may be held accountable in its tribunals for injuries caused by the negligent exercise of such a privilege, if the legislation directed to that end, enacted as an assertion of the police power of the state, contains provisions for substituted service of the process and notice which may be sanctioned as reasonably adequate to accomplish the purpose of apprising the defendant of a suit asserting his responsibility for the accident and its consequences. Unless chapter 254 of the Acts of 1929 conforms to that standard, the transmission of the notice referred to was wholly nugatory as a means of subjecting the defendant to the jurisdiction of the court in which the suit was instituted.

The act under consideration is substantially similar, except in one particular, to a Massachusetts statute which has been sustained as constitutional by the Supreme Judicial Court of Massachusetts and by the Supreme Court of the United States. Pawloski v. Hess, 250 Mass. 22, 144 N.E. 760, 35 A. L. R. 945; Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 633, 71 L.Ed. 1091. It was provided by the Massachusetts act that notice of the service of process upon the registrar of motor vehicles and a copy of the process should be sent by registered mail by the plaintiff to the defendant, and the defendant's return receipt and the plaintiff's affidavit of compliance with the act should be appended to the writ and entered with the declaration. The variation of the Maryland statute from that provision will be seen by reference to its text, quoted in this opinion, and will be presently discussed. In holding the Massachusetts act valid, the Supreme Court of the United States, in an opinion by Mr. Justice Butler, said:

"The process of a court of one state cannot run into another and summon a party there domiciled to respond to proceedings against him. Notice sent outside the state to a nonresident is unavailing to give jurisdiction in an action against him personally for money recovery. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. There must be actual service within the state of notice upon him or upon some one authorized to accept service for him. Goldey v. Morning News, 156 U.S. 518, 15 S.Ct. 559, 39 L.Ed. 517. A personal judgment rendered against a nonresident, who has neither been served with process nor appeared in the suit, is without validity. McDonald v. Mabee, 243 U.S. 90, 37 S.Ct. 343, 61 L.Ed. 608, L. R. A. 1917F, 458. The mere transaction of business in a state by nonresident natural persons does not imply consent to be bound by the process of its courts. Flexner v. Farson, 248 U.S. 289, 39 S.Ct. 97, 63 L.Ed. 250. The power of a state to exclude foreign corporations, although not absolute, but qualified, is the ground on which such an implication is supported as to them. Pennsylvania Fire Insurance Co. v. Gold Issue Mining Co., 243 U.S. 93, 96, 37 S.Ct. 344, 61 L.Ed. 610. But a state may not withhold from nonresident individuals the right of doing business therein. The privileges and immunities clause of the Constitution (section 2, art. 4), safeguards to the citizens of one state the right 'to pass through, or to reside in any other state for purposes of trade, agriculture, professional pursuits, or otherwise.' And it prohibits state legislation discriminating against citizens of other states. Corfield v. Coryell, 4 Wash. C. C. 371, 381, Fed. Cas. No. 3,230; Ward v. Maryland, 12 Wall. 418, 430, 20 L.Ed. 449; Paul v. Virginia, 8 Wall. 168, 180, 19 L.Ed. 357.

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...