Hayes v. Jansen, Civil No. 1-34.

• Decision Date: 15 March 1950
• Docket Number: Civil No. 1-34.
• Citation: 89 F. Supp. 1
• Parties: HAYES v. JANSEN et al.
• Court: U.S. District Court — Southern District of Iowa

89 F. Supp. 1

HAYES v. JANSEN et al.

Civil No. 1-34.

United States District Court S. D. Iowa, Central Division.

March 15, 1950.

Charles I. Joy, Perry, Iowa, for plaintiff.

Maxwell A. O'Brien (of Parrish, Guthrie, Colflesh & O'Brien), Des Moines, Iowa, for defendants.

SWITZER, District Judge.

This matter is before the court on a motion or special appearance of the defendant Favor, Ruhl & Company, objecting to the sufficiency of the substituted service of process had upon it. Such service was made under the authority of Sections 321.498 to 321.511, Code of Iowa 1946, I.C.A., which prescribes a method of obtaining service of process on nonresident motorists in the event their use of the highways of this State should involve them in civil proceedings.

Suit was originally filed in this case in the State court of Dallas County, Iowa, against the nonresident defendants, H. D. Jansen and the corporation Favor, Ruhl & Co., for damages claimed to have resulted from an alleged collision on Oct. 7, 1949, in that County, between the car driven by the plaintiff and the car owned and driven by the employee Jansen. The action was commenced on Dec. 7, 1949, and the defendants removed the same to this court on Dec. 22, 1949.

Substituted service was had upon H. D. Jansen and the Favor, Ruhl & Co. by filing the Original Notice of the Dallas County Court with the Commissioner of Public Safety of Iowa and by mailing to the defendants in Chicago, Ill., a notification by registered mail of said filing, pursuant to said substituted service statutes.

The facts as they appear from the pleadings, affidavits and returns are:

That the defendant H. D. Jansen is a resident of Chicago, Ill., and that at the time and place of the accident in Iowa he was engaged by the Favor, Ruhl & Company, a corporation of Chicago, Ill., as their sales representative. That the defendant Jansen was the sole owner of the 1948 Studebaker car, Illinois license No. 743-086, which he was driving when the collision occurred on October 7, 1949; that he was then engaged in the sale of artists supplies handled by the Favor, Ruhl & Company; that in the selling of such supplies he conducted his own operations, laid out his own itinerary, received no directions or orders from said Favor, Ruhl & Co. as to such travel or itinerary; that said company exercised no control over the operations of his automobile or the manner in which he used it, but that the defendant corporation did pay him a weekly salary of $75 and an annual bonus, his expenses, which included five cents per mile for the use of the car and it carried a policy of insurance to protect its liability, if any. That Mr. Jansen covered a nine-state area, that he made out his own itinerary, fixed his own time of work and travel independent of any control or supervision thereof by the Favor, Ruhl & Company.

After the accident in Dallas County, a writ of attachment was issued by that court against the Studebaker car owned by Mr. Jansen involved in the collision and he furnished a delivery bond for its release to him.

Plaintiff contends that the defendant, Favor, Ruhl & Company has already entered its general appearance in this proceeding and has thus invoked the jurisdiction of this court by the filing of its petition for removal from the State court to the federal court of the cause commenced in the State court. However, the general holding has been to the contrary. General Investment Co. v. Lake Shore & M. S. Ry. Co., 260 U.S. 261, 43 S.Ct. 106, 67 L.Ed. 244; Michigan Central R. Co. v. Mix, 278 U.S. 492, 49 S.Ct. 207, 73 L.Ed. 470.

As stated, the objection made by the defendant Favor, Ruhl & Co. to the jurisdiction of the court is grounded on the fact that said defendant is not a "person" within the provisions of Sec. 321.498 or 321.499, Code of Iowa 1946, I.C.A.

Section 321.498 in part provides:

"The use and operation of a motor vehicle in this state on the public highways thereof by a person who is a nonresident of this state shall be deemed:

"1. An agreement by him that he shall be subject to the jurisdiction of the district court * * * and

"2. An appointment by such nonresident of the commissioner of the public safety department of this state as his lawful attorney upon whom may be served all original notices of suit pertaining to such actions and proceedings, and

"3. An agreement by such nonresident that any original notice of suit so served shall be of the same legal force and validity as if personally served on him in this state."

And Sec. 321.499. "`Person' defined. The term `person', as used in section 321.498 shall mean:

"1. The owner of the vehicle whether it is being used and operated personally by said owner, or by his agent.

"2. An agent using and operating the vehicle for his principal.

"3. Any person who is in charge of the vehicle and of the use and operation thereof with the express or implied consent of the owner."

The court has set out the facts taken from the pleadings rather extensively for the reason that the decision of the court here must rest entirely upon the complaint, the return of service, affidavit of the plaintiff, return registry receipt, the affidavit of the defendant, and any other facts adduced by either side upon submission of the special appearance. Jermaine v. Graf, 225 Iowa 1063, 283 N.W. 428. It is likewise fundamental that the burden of sustaining by adequate showing the question of jurisdiction rests exclusively upon the plaintiff. Jermaine v. Graf, supra; Pendy v. Cole, 211 Iowa 199, 233 N.W. 47; Welsh v. Ruopp, 228 Iowa 70, 289 N.W. 760.

To ascertain whether the plaintiff has sustained the burden here, the court must apply the facts above recited to a proper construction of the statute involved.

It is true that Section 4.2 of the 1946 Code of Iowa, I.C.A., specifically provides that the rule of the common law that statutes in derogation thereof are to be strictly construed, has no application to the Iowa Code. However, the Iowa court in Jermaine v. Graf, supra, 225 Iowa page 1066, 283 N.W. at page 430, in discussing this question, said: "But this court has repeatedly held that statutes providing for substituted service of original notice present a method of procedure that is extraordinary in character, and allowed only because specially authorized. We have held that, such statutes being the only authority for the extraordinary procedure, to justify the procedure the facts recited in the statute must appear."

Manifestly what the court intended to say from this quotation was that despite the plain provisions of Section 4.2, supra, in determining whether or not jurisdiction has been acquired in substituted service cases of any character, a narrow and literal compliance with the statutory requirements would of necessity need be shown by a plaintiff to satisfy the statute. The fact that the Iowa Supreme Court have consistently followed this rule since and long prior to the enactment of the nonresident motorist service statutes is almost too fundamental to require citation of authorities. Journey v. Dickerson, 21 Iowa 308; Fanning v. Krapfl, 61 Iowa 417, 14 N.W. 727, 16 N.W. 293; Thornily v. Prentice, 121 Iowa 89, 96 N.W. 728, 100 Am.St.Rep. 317; Sleeper v. Killion, 166 Iowa 205, 147 N.W. 314; Kriv v. Northwestern Securities Co., 237 Iowa 1189, 1199, 24 N.W.2d 751.

Defendant argues with some merit that the defendant Jansen stood in...