Hayashida v. Second Judicial Dist. Court In and For Washoe County

• Decision Date: 01 December 1960
• Docket Number: No. 4325,4325
• Citation: 357 P.2d 117,76 Nev. 433
• Parties: Frank K. HAYASHIDA, Petitioner, v. SECOND JUDICIAL DISTRICT COURT of The State of Nevada, IN AND FOR the COUNTY OF WASHOE, Respondent.
• Court: Nevada Supreme Court

Page 117

357 P.2d 117

76 Nev. 433

Frank K. HAYASHIDA, Petitioner, v. SECOND JUDICIAL DISTRICT COURT of The State of Nevada, IN AND FOR the COUNTY OF WASHOE, Respondent.

No. 4325.

Supreme Court of Nevada.

Dec. 1, 1960.

Goldwater, Taber & Hill, Reno, for petitioner.

Belford, Anglim & Brown, Reno, for respondent.

McNAMEE, Chief Justice.

This is an original proceeding wherein petitioner seeks a writ of prohibition to prevent respondent court from continuing with a tort action against him on the ground that it has no jurisdiction over petitioner.

One Claud Head sustained personal injuries when a truck and trailer, owned by petitioner, was being unloaded at a job site where the truck had parked a half mile from Nevada State Highway Route 27. At the time of the accident the engine was stopped and the driver was out of the vehicle. The said tort action was commenced by Head who alleged therein that the accident resulted in part from the negligent unloading of the truck at said job site by petitioner's employee.

Pursuant to NRS 14.070 petitioner was served with process by service on the director of the department of motor vehicles. Subsection 1 of NRS 14.070 reads as follows:

'The use and operation of a motor vehicle over the public roads, streets or highways in the State of Nevada by any person, either as principal, master, agent or servant, shall be deemed an appointment by such operator, on behalf of himself and his principal or master, of the director of the department of motor vehicles to be his true and lawful attorney upon whom may be served all legal process in any action or proceeding against him growing out of such use of resulting in damage or loss to person or property, and the use or operation 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 though served upon him personally within the State of Nevada.'

The respondent court denied petitioner's motion to quash such service of summons.

The only question before us in this proceeding is whether NRS 14.070 has application to accidents occurring under circumstances as heretofore set forth.

In construing a statute similar to NRS 14.070, whose pertinent provisions are identical therewith, the Supreme Court of Illinois held that substituted service was insufficient. Brauer Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569, 50 N.E.2d 836, 842, 148 A.L.R. 1208. In that case an accident occurred during the unloading of a truck on private premises. To reach such premises the truck had traversed the highways of the state. The court in holding that such an accident was not within the statutory provision which permits constructive service of summons in any action or proceeding growing out of the use and operation of a motor vehicle over the public highways said:

'The difficulty with appellant's position is that it is based on the proposition that the unloading was an incident of the contract of carriage. As between the shipper and the carrier, this is no doubt true. It does not necessarily follow, however, that such unloading was incident to the use of the highway. We are not here concerned with the relations or with any contract existing between the shipper and the carrier. The sole question here is whether the injury sustained by Lindstrom was one growing out of the use of the highway. * * * The words 'or resulting in damage or loss to person or property' refer only to damage or loss growing out of the use of the highways, as specifically limited by the preceding language of the section. These general words must be limited by the particular and specific words which precede them. The general words must be construed to include only actions for damages growing out of the use of the highways as indicated by the specific words which they follow.' Accord: Langley v. Bunn, 225 Ark. 651, 284 S.W.2d 319; Ellis v. Georgia Marble Co., 191 Tenn. 229, 232 S.W.2d 45; O'Sullivan v. Brown, 5 Cir., 171 F.2d 199 (accident happened on U. S. Government land with egress and ingress only through guarded gates); De Luca v. Consolidated Freight Lines, D.C.N.Y., 132 F.Supp. 863 (injuries received while unloading a tractor-trailer stopped at a...