Jacobson v. Schuman

• Decision Date: 10 June 1952
• Docket Number: Civ. No. 1264.
• Parties: JACOBSON v. SCHUMAN.
• Court: U.S. District Court — District of Vermont

105 F. Supp. 483

JACOBSON v. SCHUMAN.

Civ. No. 1264.

United States District Court, D. Vermont.

June 10, 1952.

Vernon J. Loveland and Donald H. Hackel, of Rutland, Vt., for plaintiff.

J. Boone Wilson and Philip H. Hoff (of Black & Wilson), Burlington, Vt., A. Luke Crispe, of Brattleboro, Vt., for defendant.

GIBSON, District Judge.

The plaintiff is a citizen of the State of Texas and the defendant is a citizen of the State of New York. There is no controversy over the jurisdictional amount. The Complaint alleges that the plaintiff was injured on October 13, 1951, at the intersection of South Willard and Maple Streets in Burlington, Vermont, as a result of the negligent operation by the defendant of his automobile, and she seeks to recover damages. Summons was served upon the Commissioner of Motor Vehicles of the State of Vermont and a copy of the complaint and process with the officer's return thereon was sent to the defendant by registered mail. Such substituted service is provided for by Chapter 428 of the Vermont Statutes, Revision of 1947 as amended by No. 209 of the Public Acts, 1951, which provides in part:

"10,062. Commissioner to be process agent of person. The acceptance by a person of the rights and privileges conferred upon him by this and the following title, as evidenced by his operating, or causing to be operated, a motor vehicle in this state, shall be deemed equivalent to an appointment by such person of the commissioner, or his successor in office, to be his true and lawful attorney upon whom may be served all lawful processes in any action or proceeding against such person growing out of any accident or collision in which such person may be involved while operating or causing to be operated a motor vehicle in this state. Such acceptance shall be deemed to be the agreement of such person that any process against him which is so served upon the commissioner shall be of the same legal force and validity as if served on the person personally."

The defendant has moved to dismiss on the ground that Title 28 U.S.C.A. § 1391, requires dismissal when neither party to the suit is a resident of Vermont. Section 1391 provides:

"(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside."

This is not a new problem in the Federal Court System. The crux of the matter is whether or not the Vermont statute quoted above operates to cause an implied waiver of any objection to venue by non-resident operators of motor vehicles in this state. A study of the cases from the several United States District Courts and Circuit Courts of Appeal, wherein this same question has arisen, results in my concurrence with Chief Judge Vaught and his opinion in Burnett v. Swenson, D.C., 95 F.Supp. 524. As these cases show, the law in regard to foreign corporations and nonresident operators of motor vehicles has followed the same general course.

The power of a state to exclude foreign corporations, although not absolute but qualified, is the ground on which the United States Supreme Court has held that the doing of business in such state implies consent to be bound by the process of its courts. Pennsylvania Fire Insurance Co. v. Gold Issue Mining Co., 243 U.S. 93, 96, 37 S.Ct. 344, 61 L.Ed. 610. See Hess v. Pawloski, 274 U.S. 352, 355, 47 S.Ct. 632, 71 L.Ed. 1091. Such consent is not implied, however, by the mere transaction of business in a state by a nonresident natural person, Flexner v. Farson, 248 U.S. 289, 39 S.Ct. 97, 63 L.Ed. 250, for the privileges and immunities clause of the Constitution, Sec. 2, Art. IV safeguards to the citizens of one state the right to pass through, or to reside in any other state for purposes of trade, agriculture, professional pursuits, or otherwise. Hess v. Pawolski, supra. The case of Kane v. State of New Jersey, 242 U.S. 160, 167, 37 S.Ct. 30; 61 L.Ed. 222, recognized the power of the state to exclude a nonresident operator of a motor vehicle from its highways and, having such power, the state may declare the use of the highway by the nonresident is the equivalent of the appointment of the registrar or commissioner as agent upon whom process may be served. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091. Certainly if a state has the power to exclude a nonresident operator of a motor...