Hill v. James, 43518

• Decision Date: 17 May 1965
• Docket Number: No. 43518,43518
• Citation: 175 So.2d 176,252 Miss. 501
• Parties: Harold E. HILL, Plaintiff-Appellant, v. Kathleen M. Gaines JAMES et al., Defendants-Appellees.
• Court: Mississippi Supreme Court

Page 176

175 So.2d 176

252 Miss. 501

Harold E. HILL, Plaintiff-Appellant, v. Kathleen M. Gaines JAMES et al., Defendants-Appellees.

No. 43518.

Supreme Court of Mississippi.

May 17, 1965.

Ray, Spivey & Cain, Canton, Travis & Travis, Hattiesburg, for appellant.

M. M. Roberts, Hattiesburg, for appellees.

PATTERSON, Justice.

This is an appeal from the Circuit Court of Forrest County, Mississippi, for personal injuries received by the appellant, Harold E. Hill, in an accident while a passenger in the automobile of Wayne H. James. From an adverse verdict the plaintiff appeals.

On the evening of October 27, 1962, Harold E. Hill, a resident of the state of Louisiana, was traveling as a passenger in the automobile of Wayne H. James, also a resident of Louisiana, in a northerly direction on U. S. Highway 11 in Forrest County, Mississippi. The James automobile, when about two miles south of the city of Hattiesburg, collided with the automobile of one David R. Potin. James died as the result of the collision. Hill and Potin were injured.

Hill brought this suit against Potin, a resident of Forrest County, Mississippi, and against Mrs. Kathleen M. Gaines James, the widow of Wayne H. James, and against Wayne H. James, Jr. and Kevin Ray James, minors, the sons of Mrs. Kathleen M. Gaines James and Wayne H. James, deceased. The suit was brought under the provisions of Mississippi Code Annotated section 9352-61 (Supp.1964), against Mrs. James, the widow, and the two minor children, the sons of decedent, in their individual capacities and not against an administrator or executor of the decedent's estate.

A settlement was attained between the plaintiff and the defendant Potin, resulting in his release from the suit. The subsequent trial was thus between Hill, a resident of Louisiana, and the widow and children of James, who are also residents of Louisiana.

The first issue for the Court to determine is whether jurisdiction was acquired of the nonresident defendants by the provisions of Mississippi Code Annotated section 9352-61 (Supp.1964). The pertinent parts thereof are as follows:

'The acceptance by a nonresident of the rights and privileges conferred by the provisions of this act, as evidenced by his operating * * * a motor vehicle * * * in this State * * * shall be deemed equivalent to an appointment by such nonresident of the Secretary of State of the State of Mississippi to be his true and lawful attorney, upon whom may be served all lawful processes * * * in any action * * * growing out of any accident * * * while operating a motor vehicle * * * in this State. * * * The venue of such action shall be either in the county where the cause of action accrued or in the county in which the plaintiff resides.

'Any cause of action arising out of such accident * * * against any such nonresident, in case of the death of such nonresident, shall survive against his administrator, executor or other personal representative of his estate, and service of * * * process * * * when had * * * upon any such nonresident owner, nonresident operator or agent or employee, or upon the executor, administrator or other legal representative of the estate of such nonresident * * * shall be deemed sufficient * * * to give any court of this State, in which such action may be filed * * * jurisdiction over the cause of action and over the nonresident owner, nonresident operator or agent or employee, or the nonresident executor, or administrator of such nonresident owner or nonresident operator, defendant or defendants, and shall * * * authorize personal judgment against such nonresident owner, nonresident operator, agent, employee, executor or administrator or other legal representative of the estate of such nonresident owner or nonresident operator, defendant or defendants * * *.

'The * * * relationship created under the provisions of this act * * * in the event of the death of such nonresident * * * operator of such motor vehicle, shall survive and continue and extend to his executor, administrator or other legal representative of his estate, and the Secretary of State of the State of Mississippi shall be in the same position and relationship with respect to the executor, administrator or other legal representative of the estate * * * as he was in * * * had such nonresident owner or nonresident operator survivied; and in any action arising or growing out of such accident * * * in which such nonresident * * * has died * * * service of process * * * may be had * * * upon the nonresident executor, administrator or other legal representative of the estate of such nonresident owner * * * it shall be deemed sufficient service * * * to give any court in this State in which such action may be filed * * * jurisdiction over the cause of action and over such nonresident executor or administrator of such nonresident owner or operator of such motor vehicle insofar as such cause of action is involved.' (Emphasis added.)

We are of the opinion and so hold that Mississippi Code Annotated section 9352-61 (Supp.1964) extensively quoted above and upon which the appellant relies for jurisdiction of this suit does not authorize an action to be brought against the widow or minor children of a nonresident decedent in their individual capacities.

We have analyzed the Mississippi cases defining the term 'legal representative' and have endeavored to find cases defining 'personal representative' to no avail. Those dealing with the former term are Stringer v. Price, 143 Miss. 189, 108 So. 431 (1926); Yazoo & Mississippi Valley R. R. Co. v. Washington, 92 Miss. 129, 45 So. 614 (1907); Allen v. Alliance Trust Co., 84 Miss. 319, 36 So. 285 (1904); Fuller v. Davis, 63 Miss. 78 (1885); and Grand Gulf R. R. & Banking Co. v. Bryan, 16...