Jones v. Pebler

• Decision Date: 14 April 1939
• Docket Number: No. 24961.,24961.
• Citation: Jones v. Pebler, 371 Ill. 309, 20 N.E.2d 592 (Ill. 1939)
• Parties: JONES et al. v. PEBLER et al.
• Court: Illinois Supreme Court

371 Ill. 309

20 N.E.2d 592

JONES et al.

v.PEBLER et al.

No. 24961.

Supreme Court of Illinois.

April 14, 1939.

Action by Ethyle Jones and others against Edwin G. Pebler and the J. H. Cownie Company and others for injuries received in an automobile collision.From a judgment of the Appellate Court, 296 Ill.App. 460, 16 N.E.2d 438, affirming a judgment dismissing the amended complaint as to all except the first-named defendant, plaintiffs appeal.

Reversed and remanded, with directions.Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Du Page County; William J. Fulton, Judge.

Guy C. Guerine, of Melrose Park, and Leslie J. Smith, Jr., of Chicago, for appellants.

Hadley & Weaver, of Wheaton (Harry G. Weaver, of Wheaton, of counsel), for appellees.

WILSON, Justice.

The plaintiffs, Ethyle, George Henry, Frederick W. and Helen Jones, brought an action in the circuit court of DuPage county against the defendants, Edwin G. Pebler, J. H. Cownie Co., a corporation, and John H. Cownie and J. M. Schiltz, doing business as J. H. Cownie Co., to recover damages for personal injuries sustained in an automobile collision near the village of Glen Ellyn on October 31, 1936.By their amended complaint plaintiffs charged that Pebler was in possession and control of an automobile which he was driving for and on behalf of the co-defendants as their agent, servant or employee.The defendants, non-residents of Illinois, were served with process conformably to the provisions of section 20a of the Motor Vehicle Act.Service upon Pebler was not challenged.Appearing specially the corporate defendant, Cownie and Schiltz interposed motions to quash the service of summons on the ground, among others, that neither on the day named, nor at any other time, did they use and operate a motor vehicle over the highways of this State as a corporation, a partnership, individually or otherwise, personally or through an agent.The motions to quash were sustained, and the amended complaint dismissed as to all the defendants except Pebler.An appeal to the Appellate Court for the Second District by the plaintiffs resulted in an affirmance.Jones v. Pebler, 296 Ill.App. 460, 16 N.E.2d 438.The Appellate Court has granted a certificate of importance and the cause is before us for further review.Pebler is not a party to this appeal.

By an act approved June 25, 1929, section 20a was added to the act in relation to motor vehicles.Section 20a, Ill.Rev.Stat.1937, chap. 95 1/2, § 23, p. 2092, so far as pertinent, provides: ‘The use and operation by a non- resident of a motor vehicle over the highways of the State of Illinois, shall be deemed an appointment by such non-resident of the Secretary of State, to be his true and lawful attorney upon whom may be served all legal process in any action or proceeding against him, growing out of such use or resulting in damage or loss to person or property, and said use or operation shall be a signification of his agreement that any such process against him which is so served, shall be of the same legal force and validity as though served upon him personally.’

Plaintiffs contend that the operation and use of an automobile on the highways of this State by a servant, agent or employee of a non-resident corporation or the individual members of a partnership, render the superior amenable to the quoted provisions of the statute.To sustain the judgment of the Appellate Court, defendants maintain that section 20a is applicable only to individuals who are in actual possession of and driving an automobile within the State, and, conversely, that the statutory provisions for service on non-residents do not apply to a non-resident principal whose agent, also a non-resident, operates his own or his principal's automobile on the highways of Illinois.A primary purpose of statutory construction is to ascertain the intention of the legislature.In determining this intent courts consider the language used, and evil to be remedied and the object to be attained.Burke v. Industrial Com.368 Ill. 554, 15 N.E.2d 305, 119 A.L.R. 1152;Schoellkopf v. DeVry, 366 Ill. 39, 7 N.E.2d 757, 110 A.L.R. 511;People v. Hughes, 357 Ill. 524, 192 N.E. 551.If the language employed admits of two constructions, one of which makes the enactment absurd, if not mischievous, while the other renders it reasonable and wholesome, the construction which leads to an absurd result should be avoided.Burke v. Industrial Comm., supra;Patterson Pure Food Pie Co. v. Industrial Comm., 335 Ill. 476, 167 N.E. 86.

At least thirty-five States authorize the commencement of suit against non-resident motorists by substituted service on a public official of the State where the cause of action arises, the official being made for this purpose the agent or attorney of the non-resident motorists.These statutes usually make the mere operation of a motor vehicle on the highway by a non-resident the equivalent of a formal appointment of a public officer as agent for receiving service of process.Maurice S. Culp, ‘Process in Actions against Non-Resident Motorists,’ 32 Michigan L.R. p. 325.In Pawloski v. Hess, 250 Mass. 22, 144 N.E. 760, 761, 35 A.L.R. 945, referring to statutory provisions corresponding to section 20a of our Motor Vehicle Law, the Supreme Judicial Court of Massachusetts said: ‘The aim of the statute is to facilitate the enforcement of civil remedies by those injured in their person or property by the negligent or wanton operation of motor vehicles upon the highways of this commonwealth.* * * The general court well may have thought that one effective means for curbing negligence or wanton misconduct in the operation of motor vehicles would be the existence of swift, inexpensive and adequate remedy for injuries flowing therefrom.When one sustaining damage within this commonwealth from the negligence or wanton misconduct of a nonresident is compelled to seek relief in the courts of a jurisdiction where personal service of process may be made upon him, ‘in many instances the cost of the remedy would’ largely exceed ‘the value of its fruits.* * * The result would be, to a large extent, immunity from all legal responsibility’on the part of such nonresident.'Affirming the judgment of the Massachusetts court, the Supreme Court of the United States(Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 633, 71 L.Ed. 1091) said: ‘Motor vehicles are dangerous machines; and, even when skillfully and carefully operated, their use is attended by serious dangers to persons and property.* * * The measure in question operates to require a nonresident to answer for his conduct in the state where arise causes of action alleged against him, as well as to provide for a claimant a convenient method by which he may sue to enforce his rights.’

In like fashion section 20a expresses the manifest legislative intent of conferring jurisdiction of suits against non-resident motorists on the courts of Illinois to the end that compensation for injuries to local residents may be obtained.Admittedly, the policy is as desirable when the driving is done on behalf of a non-resident by an agent, chauffeur, servant, or a third person with consent, as when by the non-resident himself.‘The potential harm,’ it has been well said, ‘is as great whether the non-resident owner himself or another be driving his car, and the necessity for resorting to substituted service is just as pressing.’Culp, ‘Process in Action against Non-Resident Motorists,’supra.Again, it has been pertinently observed: ‘The large proportion of cars owned and operated by foreign corporations and partnerships was as obvious to the legislature as was the fact that a corporation can perform such physical acts as operating a car only through agents.’6 University of Chicago L.R.p. 122.Section 20a provides that the mere use or operation by a non-resident of a motor vehicle on a highway of this State serves automatically to appoint the Secretary of State as attorney to receive service of process, and the ‘use or operation,’ the law ordains, shall be a signification that such substituted service shall be of the same legal force and validity as personal service.The word ‘non-resident’ appears without definition, does not purport to be limited to non-resident natural persons, and is obviously broad enough to include every non-resident, individual or corporate, owner or non-owner, using and operating a motor vehicle over Illinois highways.In short, a non-resident, within the contemplation of section 20a may be a non-resident corporation or an individual member of a non-resident partnership.

Defendants nevertheless place reliance on O'Tier v. Sell, 252 N.Y. 400, 169 N.E. 624, which construed section 52 of the Vehicle and Traffic law of New York,Consol.Laws, c. 71, in force in 1929, providing for constructive service upon a non-resident in an action ‘growing out of any accident or collision in which such nonresident may be involved while operating a motor vehicle.’The...