Howard v. Allen

• Decision Date: 07 June 1973
• Docket Number: Civ. A. No. 73-150.
• Citation: 368 F. Supp. 310
• Parties: Carolyn G. HOWARD, Plaintiff, v. Donald L. ALLEN, Defendant.
• Court: U.S. District Court — District of South Carolina

368 F. Supp. 310

Carolyn G. HOWARD, Plaintiff, v. Donald L. ALLEN, Defendant.

Civ. A. No. 73-150.

United States District Court, D. South Carolina, Columbia Division.

June 7, 1973.

Richard M. Kennedy, Jr., Columbia, S. C., for plaintiff.

Donald V. Richardson, III, Columbia, S. C., and Horace L. Bomar, Holcombe, Bomar, Cureton & Wynn, Spartanburg, S. C., for defendant.

HEMPHILL, District Judge.

This matter comes before the court upon a motion by defendant Donald L. Allen to quash and set aside service of the Summons, and to dismiss this action for want of personal jurisdiction over Allen. The action arises out of a personal injury sustained by the plaintiff, Carolyn G. Howard when she was allegedly struck by the propeller of an aircraft, piloted by the defendant, while at the downtown airport in Greenville, South Carolina. At the time of the incident, defendant was and at present is a resident of Ohio; plaintiff was and is a resident of South Carolina, the amount in controversy is asserted to be in excess of Ten Thousand ($10,000.00) Dollars. The requisites of diversity jursidiction exist prima facie.¹

Defendant's motion to quash/dismiss is based on the grounds that:

(1) Defendant has not been properly served with process in accordance with any applicable statute.

(2) The accident complained of occurred on or about February 24, 1967, and the statute purporting to permit substituted service on defendant did not become effective until March 31, 1971, and may properly be applied prospectively only, the statute not being one of which it enacted or intended to be applied retroactively.

(3) Any attempt to apply the 1971 statute retroactively to a 1967 accident violates the defendant's constitutional rights, particularly the due process clause of the Federal Constitution.

(4) Any attempted exercise of personal jurisdiction over defendant, an Ohio resident, in the District of South Carolina is unconstitutional in that defendant did not have the necessary minimal contacts to satisfy the requirements of due process under the Federal Constitution.

(5) Personal jurisdiction over defendant may not be predicated on the alleged commission of a single tort in South Carolina in February, 1967, at which time there was no statute which would have made the defendant subject to suit in South Carolina.

Preliminary to a detailed consideration of defendant's grounds, it is appropriate to examine the applicable statutes upon which plaintiff relies for jurisdiction and which defendant contends fall short of conferring jurisdiction. The first of these is Section 10-431.2, S.C. Code Ann. (Supp.1971), which provides:

§ 10-431.2. Service on nonresident operators of aircraft. — Service of process upon the Director of the South Carolina Aeronautics Commission, as agent of the nonresident operator of any aircraft which has set down in South Carolina, shall be made by leaving a copy thereof, with a fee of four dollars, in the hands of the Director or his office and such service shall be sufficient service upon the nonresident if notice of the service and a copy of the process are forthwith sent by certified mail by the plaintiff or the Director to the defendant and the defendant's return receipt and the plaintiff's affidavit of compliance herewith are appended to the summons or other process and filed with the summons, complaint and other papers in the cause. The Director shall keep a record of all processes which shall show the day and hour of service upon him. When the certified return receipt shall be returned to the Director, he shall deliver it to the plaintiff on request and keep a record showing the date of its receipt by him and its delivery to the plaintiff.

An integral part of this section is § 10-431.3² which establishes the procedures to be followed when a defendant on whom service is sought under § 10-431.2 does not receipt for notice sent by certified mail. In all essential respects, these sections are identical to or correspond so closely as to appear identical in purpose, to §§ 10-431 and 10-431.1,³ S. C.Code Anno. (1971 Supp.) respectively, relating to service of process on nonresident motor vehicle drivers.

The second of these statutes is § 10.2-801 et seq., South Carolina Code Ann. (1962) (1966 Added Volume), the so-called "Long Arm Statute." Originally enacted as a part of the South Carolina Uniform Commercial Code, which became effective January 1, 1968, these sections were reenacted effective June 2, 1972, in order to cure certain constitutional (South Carolina) infirmities. Specifically, these sections were relegislated to conform with the notice requirement of Section 17 of Article III⁴ of the Constitution of South Carolina.

The specific portions of § 10.2-801 et seq. here relied on by the plaintiff to confer personal jurisdiction upon this court specify:

§ 10.2-803. Personal jurisdiction based upon conduct. — (1) A court may exercise personal jurisdiction over a person who acts directly or by an agent as to a cause of action arising from the person's

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(c) commission of a tortious act in whole or in part in this State;

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§ 10.2-804. Service outside the State. — When the exercise of personal jurisdiction is authorized by this section, service may be made outside the State.

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§ 10.2-806. Manner and proof of service. — (1) When the law of this State authorizes service outside this State, the service, when reasonably calculated to give actual notice, may be made:

(a) by personal delivery in the manner prescribed for service within the State;

(b) in the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction;

(c) by any form of mail addressed to the person to be served and requiring a signed receipt or

(d) as directed by the court.

(2) Proof of service outside this State may be made by affidavit of the individual who made the service or in the manner prescribed by law of this State, the order pursuant to which the service is made, or the law of the place in which the service is made for proof of service in an action in any of its courts of general jurisdiction. When service is made pursuant to paragraph (c) of subsection (1) of this section, proof of service shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court.

§ 10.2-807. Individuals eligible to make service. — Service outside this State may be made by an individual permitted to make service of process under the law of this State or under the law of the place in which the service is made or who is designated by a court of this State.

SERVICE OF PROCESS

From the record it appears that service of process upon defendant was accomplished by proceeding under both of the aforementioned statutes, that is: (1) by service upon the Director of the South Carolina Aeronautics Commission with attempted notice to the defendant by certified mail as provided by § 10-431.2,⁵ and failing in an attempt to obtain a receipt for the certified mail by properly complying with the alternative procedure of § 10-431.3 of using regular mail to accomplish service; and (2) by personal service of a summons upon the defendant in Ohio by a United States Marshal (only after the expenditure of considerable effort and numerous attempts) on April 23, 1973, thereby complying with §§ 10.2-806, 807 of the Code of Laws of South Carolina. The defendant's first ground is thereby without merit.

RETROACTIVE APPLICATION OF STATUTES

The basic question before the court is whether or not the two statutes relied on by plaintiff to confer jurisdiction upon this court may be applied retroactively. It is conceded by plaintiff that neither of the statutes in question was in effect at the time of the accident. Because of clear distinctions between the two statutes it is deemed advisable by the court to consider them separately. A general rule of construction concededly applicable to both statutes however, is that in general statutes are to be construed as acting prospectively unless there is a specific provision or clear legislative intent to the contrary.

(a) § 10-431.2 Service on nonresident operators of aircraft.

As previously noted, this statute is very similar to § 10-431 providing for service on nonresident motor vehicle operators. Of particular importance in this regard is that, in both instances, the statutes provide for service upon a state official; in the case of § 10-431.2 the Director of the South Carolina Aeronautics Commission, "as agent of the nonresident operator." It is this "fiction of implied consent" which sets this type of statute apart and which, in part at least, led the South Carolina Supreme Court to hold in the case of Johnson v. Baldwin, 214 S.C. 545, 53 S.E.2d 785 (1949), that a statute containing provisions for substituted service upon the Secretary of State, in order to confer jurisdiction over nonresident directors of domestic corporations, could not have retrospective application. In support of its holding the court noted that:

a similar view has uniformly been taken of statutes providing for substituted service upon nonresidents in tort actions growing out of the operation of motor vehicles on the public highway. The courts have uniformly declined to give the statute retroactive effect. 53 S.E.2d at 788 citations omitted.

As was observed in the annotation at 19 A.L.R.3d 138, 142,

This rule rests on the view that neither as a matter of statutory construction nor as a matter of constitutional law is it possible to imply consent retroactively.

From the above, it is clear that § 10-431.2 may not be given retroactive effect. It therefore follows that any service of process upon the defendant under the provisions of such section is invalid.

(b) § 10.2-801 et seq. Personal jurisdiction based on conduct.

Defendant contends that as § 10.2-803 did not become effective until January 1,...