Hirsch v. Warren

• Citation: 68 S.W.2d 767,253 Ky. 62
• Parties: HIRSCH v. WARREN (two cases). SAME v. JONES.
• Decision Date: 20 February 1934
• Court: Kentucky Court of Appeals

68 S.W.2d 767

253 Ky. 62

HIRSCH v. WARREN (two cases).

SAME v. JONES.

Court of Appeals of Kentucky

February 20, 1934

Appeal from Circuit Court, Grant County.

Suits by A. F. Warren, Mrs. Callie Warren, and N.M. Jones against Mrs. Ruah Hirsch. From judgments for plaintiffs, defendant appeals.

Affirmed as to N.M. Jones, and reversed and remanded as to A. F Warren and Mrs. Callie Warren.

F. A Harrison, of Williamstown, for appellant.

R. L Vincent and L. M. Ackman, both of Williamstown, for appellees.

CLAY Justice.

On January 31, 1932, an automobile belonging to Mrs. Ruah Hirsch, of Cincinnati, Ohio, collided with A. F. Warren's automobile on the Dixie Highway, in Grant county. Both machines were badly damaged, and Mrs. Callie Warren and N.M Jones, who were riding in the Warren car, were injured.

A. F. Warren brought suit to recover for the injury to his car, and process was served on Mrs. Hirsch in person. Later on separate actions were brought by Callie Warren and N.M. Jones to recover for personal injuries. Over the objection of Mrs. Hirsch, the three cases were consolidated and tried together. The jury returned a verdict in favor of Mrs. Callie Warren for $500, in favor of A. F. Warren for $275, and in favor of N.M. Jones for $225. Mrs. Hirsch appeals as to Callie Warren, and has prayed an appeal as to A. F. Warren and N.M. Jones.

It is first insisted that the court erred in refusing to quash the process in the Callie Warren and N.M. Jones suits. The basis of this contention is that the statute providing for substituted process on a nonresident motorist contravenes the due process clause of the Fourteenth Amendment to the Federal Constitution, and is therefore invalid.

The statute, which is chapter 80, Acts 1930, and now section 12-1 to section 12-6, Carroll's Kentucky Statutes, 1933 Supplement, in so far as material, reads as follows:

"§ 12-1. That any non-resident of this Commonwealth, being the operator or owner of any motor vehicle, who shall accept the privilege extended by the laws of this Commonwealth to non-resident operators and owners of operating a motor vehicle or having same operated, within the Commonwealth of Kentucky, shall by such acceptance, and by the operation of such motor vehicle within the Commonwealth of Kentucky, make and constitute the Secretary of State of the Commonwealth of Kentucky his, her or their agent for the service of process in any civil suit or proceeding instituted in the courts of the Commonwealth of Kentucky against such operator or owner of such motor vehicle, arising out of, or by reason of any accident or collision or damage occurring within the Commonwealth in which such motor is involved.

§ 12-2. Said action may be filed either in the county where the loss or damage may have occurred, or in the county where the plaintiff or one of the plaintiffs may reside. The clerk of the court in which said action may be filed shall issue process against the defendant or defendants named in the petition and shall direct same to the sheriff of Franklin County. Said officer to whom said process is directed shall execute same by delivering a true copy thereof to the secretary of state of the Commonwealth of Kentucky at least twenty days before the return day of said process, and shall also deliver with said summons an attested copy of plaintiff's petition. It shall then be the duty of said secretary of state to write a letter to the defendant in said petition at the address given in said petition, notifying said defendant of the nature and pendency of said action, and to enclose in said letter said summons and said copy of said petition. Said letter shall be posted in the mails of the United States by prepaid registered mail and bear the return address of said secretary. Said secretary shall thereafter file, with the clerk issuing said process a report of his action, which shall include a copy of said letter and an answer thereto, together with the return registry receipt, if any."

"§ 12-4. The court in which said action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to appear and defend the action.

§ 12-5. This act shall be construed to extend the right of service of process upon nonresidents, and shall not be construed as limiting any provisions for the service of process now or hereafter existing."

All the suits were brought in the Grant circuit court. The amended petitions in the Callie Warren and Jones cases repeated the allegations of negligence, and gave the street address of Mrs. Hirsch in Cincinnati, Ohio. Summons in each case was issued by the clerk of the Grant circuit court directed to the sheriff of Franklin county, together with an attested copy of the amended petition. The summons and attested copy were delivered to the secretary of state by the sheriff of Franklin county, who made a return showing the proper execution and delivery thereof. The secretary of state then sent the summons and copy of the amended petition in each case to Mrs. Hirsch by registered mail to the address given in the petitions, with a return receipt attached thereto, together with a letter notifying Mrs. Hirsch of the nature and pendency of the action. In each case the registry receipt was signed by Mrs. Hirsch and returned to the secretary of state. This receipt, together with a letter reporting her acts, was mailed to, and received by, the clerk of the Grant circuit court in each case.

The rule deducible from the authorities is that, by virtue of its power to regulate the use of its highways by nonresidents the state may declare that the use of the highway by the nonresident may by statute be treated as the equivalent of the appointment by him of a state official as the agent on whom process may be served in suits growing out of accidents in such operation, Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091, provided the statute contain a provision making it reasonably probable that the notice will be communicated to the person sued, Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446, 57 A. L. R. 1230. The point of attack on the statute is that the secretary of state is not required actually to notify the defendant of the nature and pendency of the action, but is only required to write a letter to the defendant "at the address given in said petition," and, in reporting his action to the court, must include "the return registry receipt, if any," and that these requirements are not sufficient to make it reasonably...