Jermaine v. Graf

• Decision Date: 17 January 1939
• Docket Number: 44428,44429.
• Citation: 283 N.W. 428,225 Iowa 1063
• Parties: JERMAINE v. GRAF et al. SHERIDAN v. SAME.
• Court: Iowa Supreme Court

283 N.W. 428

225 Iowa 1063

JERMAINE v. GRAF et al.

SHERIDAN v. SAME.

Nos. 44428, 44429.

Supreme Court of Iowa.

January 17, 1939

Appeal from District Court, Polk County; F. S. Shankland, Judge.

Actions at law, two in number, consolidated for hearing in this court. In each case defendant-appellant A. C. Nielson Company filed a special appearance which was overruled. Therefrom A C. Nielson Company has appealed. The two cases are reversed.

Reversed.

Stipp Perry, Bannister & Starzinger, and William B. Perry, all of Des Moines, for appellant.

Colavecchio & Bellizzi, of Des Moines, for appellees.

RICHARDS, Justice.

By stipulation the two entitled cases have been consolidated for submission. We will first consider case No. 44428, entitled Rev. G. C. Jermaine, Plaintiff-Appellee, v. F. H. Graf Defendant-Appellee, and A. C. Nielson Company, Defendant-Appellant.

The petition of plaintiff Jermaine sounded in damages. F. H. Graf, and A. C. Nielson Company, were designated as defendants. The substance of the complaint was that defendant Graf, on April 10, 1937, while using and operating a Pontiac automobile in a negligent manner on a public street in Des Moines, drove the Pontiac into collision with plaintiff's automobile that plaintiff was then and there driving; that the impact of the collision overturned and smashed plaintiff's automobile, and physically injured plaintiff, to his damage in the sum of $2,500; that plaintiff was in no manner contributorily negligent; that at the time and place of said accident defendant Graf was driving and operating the Pontiac automobile with the knowledge and consent of defendant A. C. Nielson Company, and in the course of said Graf's employment with said A. C. Nielson Company; that defendant Graf is a resident of Illinois; that defendant A. C. Nielson Company is a foreign corporation doing business in the State of Iowa, and said Graf was transacting the business of said corporation as said company's agent or servant; that with the negligence of Graf both defendants are charged and held responsible. Judgment was demanded against the two defendants for $2,500.

For the purpose of serving the original notice of the action upon these non-resident defendants, plaintiff invoked the procedure found in sections 513 to 526, inclusive, of the Motor Vehicle Law, chapter 134 of the Acts of the 47th General Assembly. Whether thereby the Polk District Court acquired jurisdiction of appellant A. C. Nielson Company is the question before us. The question was presented to the district court by appellant's special appearance challenging the court's jurisdiction. The special appearance was overruled and defendant has appealed.

Two of the sections we have mentioned are in these words:

" Sec. 513. Legal effect of use and operation . 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 of this state over all civil actions and proceedings against him for damages to person or property growing or arising out of such use and operation, and

2. An appointment by such nonresident of the commissioner of the motor vehicle 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.

Sec. 514. ‘ Person’ defined . The term ‘ person,’ as used in section five hundred thirteen (513) 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."

Sections 516 and 517 provide that in actions contemplated by sections 513 and 514 the plaintiff shall cause the original notice to be served by filing a copy with the commissioner of the motor vehicle department, and by mailing within a certain time to each defendant, by restricted registered mail, a notification of the filing with the commissioner. Appellant raised no question whether the procedural acts required by sections 516 and 517 were performed, nor whether a corporation is a person within the meaning of these sections.

In appellant's special appearance he prayed that it be sustained, and that the return of service be quashed as to appellant, the particular ground of the special appearance on which appellant here relies being the following: " (5) That the defendant, A. C. Nielson Company, is not a person within the meaning of section 514 of the Iowa Motor Vehicle Act, whereby service can be had upon it or jurisdiction over it obtained by the manner and means employed by plaintiff, as shown by his proofs herein."

Section 520 of chapter 134 provides that proof of the doing the things required by sections 516 and 517 shall be made by affidavit of the party doing said acts, and that all affidavits of service shall be endorsed upon or attached to the original of the papers to which they relate, and that all proofs of service, including the return registry receipt, shall be forthwith filed with the clerk of the district court.

Proofs were filed by plaintiff. But in the proofs appears no showing from which the court could have found that appellant was (1) the owner of the Pontiac automobile or (2) an agent using and...