Kerr v. Greenstein

• Decision Date: 03 May 1948
• Docket Number: 4-8531
• Citation: 212 S.W.2d 1,213 Ark. 447
• Parties: Kerr, Administrator v. Greenstein
• Court: Arkansas Supreme Court

212 S.W.2d 1

213 Ark. 447

Kerr, Administrator v. Greenstein

No. 4-8531

Supreme Court of Arkansas

May 3, 1948

Rehearing Denied June 28, 1948.

Appeal from Pulaski Circuit Court, Second Division; Lawrence C Auten, Judge.

Affirmed.

John R. Thompson, for appellant.

Moore Burrow, Chowning & Mitchell, for appellee.

Ed. F McFaddin, Justice. The Chief Justice and Mr. Justice Robins dissent. Griffin Smith, Chief Justice, dissenting. Mr. Justice Robins joins in this dissent.

OPINION

Ed. F. McFaddin, Justice.

The sufficiency of the service of process on the appellee is the issue for decision. The question is: does service pursuant to our non-resident motorist service statute apply to a defendant such as appellee?

Appellant, as administrator of the estate of Elmedia E. Kerr, filed action against the appellee in Pulaski Circuit Court, claiming damages for the death of the deceased. The complaint alleged that the deceased was driving her automobile on a public highway when the appellee negligently drove another car into and against her car, inflicting injuries which resulted fatally, and for which damages were prayed. The appellee was and is a non-resident of Arkansas, and service of process was obtained pursuant to the provisions of Act 39 of 1933 as amended by Act 40 of 1941. The text of these Acts may be found in 3 Ark. Stats., §§ 27-341 and 27-342. ^[1] We will refer to this statute as the "non-resident motorist service statute." The appellee filed motion to quash service; and the motion to quash was submitted to the circuit court on a stipulation reading entirely as follows:

"Comes the plaintiff, W. D. Kerr, as Administrator of the estate of Elmedia E. Kerr, deceased, by his attorney of record, John R. Thompson, and comes the defendant, Emanuel Greenstein, specially and not generally by his attorneys of record, Moore, Burrow, Chowning & Hall, and agree and stipulate upon the following facts for the sole purpose of the Court's consideration in passing upon the defendant's motion to quash summons issued and served upon him in this cause, by serving him under the provisions of Act 39 of the Acts of the General Assembly of the State of Arkansas for 1933, as amended by Act 40 of the Acts of 1941 of the General Assembly of the State of Arkansas:

"Mr. A. Sanders, a resident of Little Rock, Arkansasl died on April 21, 1946, and a number of relatives by blood and marriage came to Little Rock for his funeral, among them being the defendant, Emanuel Greenstein, who is a resident of Chicago, Illinois, and a Mrs. Jennie Freeman, who is a resident of Dallas, Texas.

"Both Mr. Greenstein and Mrs. Freeman were guests in the A. Sanders home, which after the death of Mr. A. Sanders was occupied by his family. The wife of Mr. A. Sanders died some two years prior to the death of A. Sanders and he had not remarried.

"After the funeral of A. Sanders, Mrs. Freeman desired to return to her home in Dallas, Texas, and a few minutes before her train was due to leave the Missouri Pacific station, one of the daughters of Mr. A. Sanders requested Mr. Greenstein to drive Mrs. Freeman to the railroad station, and it was while he was in the act of driving her to the station in the A. Sanders car that the collision occurred which is the ground of this suit.

"The automobile which the defendant, Emanuel Greenstein, was driving at the time of the collision with the Kerr automobile was owned by A. Sanders personally and bore an Arkansas 1946 state license issued him by the State of Arkansas, and bore no license of any other state. The car was used by Mr. A. Sanders for his own personal use and his daughters who lived with him had the privilege of using the car.

"The defendant, Emanuel Greenstein, at the time that said automobile collision occurred, was a resident and a citizen of the City of Chicago, and State of Illinois, and had his legal domicile in said City and State, and he has not changed his residence or domicile since said collision. He came to Little Rock for the Sanders funeral by railroad and returned in the same way following the automobile collision, and he did not have with him in the State of Arkansas while here an automobile owned or controlled by him, and the only automobile which he drove while in the City of Little Rock and State of Arkansas was the A. Sanders car aforesaid.

"The service that has been had on the defendant in this cause was service of a summons under the provisions of the above act, and it is the contention of the plaintiff that such service is sufficient service, while it is the contention of the defendant that valid service cannot be secured upon him under the provisions of said Acts under the facts hereinabove stipulated."

The circuit court held the service to be insufficient, and sustained appellee's motion to quash. Thereupon the plaintiff elected not to ask for alias service, but prayed an appeal to the Supreme Court. Authority for treating the court's order as final and appealable may be found in the cases of Berryman v. Cudahy Packing Co., 189 Ark. 1151, 76 S.W.2d 956 and Yocum v. Oklahoma Tire & Supply Co., 191 Ark. 1126, 89 S.W.2d 919. There is thus presented the question of the sufficiency of the service of process, to be determined on the stipulated facts heretofore quoted. Appellant relies on Oviatt v. Garretson, 205 Ark. 792, 171 S.W.2d 287, wherein we discussed our non-resident motorist service statute. Appellee claims that our statute provides for service only on "non-resident owners," and not on "non-resident operators" of vehicles owned and operated in Arkansas.

I. Statute to be Strictly Construed. At the outset, we state that our statute is to be strictly construed, because it is in derogation of common law. In Brown v. Cleveland Tractor Co., 265 Mich. 475, 251 N.W. 557, and, again, in Flynn v. Kramer, 271 Mich. 500, 261 N.W. 77 the Supreme Court of Michigan, in discussing the Michigan non-resident motorist service statute, said:

"The statute is in derogation of common right, must be strictly construed, and cannot be extended by implication to include persons not coming within its terms."

In Jermaine v. Graf, 225 Ia. 1063, 283 N.W. 428, the Supreme Court of Iowa, in discussing the Iowa non-resident motorist service statute, said.

"In several jurisdictions it has been held that statutes, of the nature of these we are discussing, are in derogation of the common law and must be construed strictly, and may not be extended by implication to non-residents not coming within their terms. Brown v. Cleveland Tractor Co., 265 Mich. 475, 251 N.W. 557; Morrow v. Asher, D. C., 55 F.2d 365; Day v. Bush, 18 La.App. 682, 139 So. 42."

In 5 Am. Juris. 830, "Automobiles," § 591, the general rule is stated:

"Statutes which provide for constructive or substituted service of process on non-resident motorists are in derogation of common rights and should be strictly construed, and strict compliance therewith must be observed, although provisions should not be read into such a statute which are not expressly stated or necessarily implied."

Other cases sustaining the above statements are: Commonwealth v. Maryland Casualty Co., 112 F.2d 352; Webb Packing Co. v. Harmon, 38 Del. 476, 193 At. 596; Rose v. Gisi, 139 Neb. 593, 298 N.W. 333.

II. Historical Study of Our Statute. Having therefore decided that our non-resident motorist service statute should be construed strictly, we come next to an historical study of the statute. In Hess v. Pawloski, 274 U.S. 352, 71 Law Ed. 1091, 47 S.Ct. 632, the United States Supreme Court, in 1927, sustained a Massachusetts statute providing for service of process on non-resident motorists. Subsequently in Wuchter v. Pizzutti, 276 U.S. 13, 72 L.Ed. 446, 48 S.Ct. 259, the United States Supreme Court in 1928 considered a New Jersey statute designed along the same lines as the Massachusetts statute, but held the New Jersey statute defective on a point not here at issue. These two cases probably served as the impetus for various states to adopt statutes similar to the Massachusetts statute, and without the fatal defect of the New Jersey statute. In 1929, the State of Oregon by Chapter 359 enacted a non-resident motorist service statute. ^[2] Many states have somewhat similar statutes. ^[3] Our original statute (Act 39 of 1933) seems to be a composite of the Massachusetts, New Jersey and Oregon statutes. Act 40 of 1941 amended the 1933 Act, to permit service in an action against the estate of the deceased non-resident.

III. Analysis of Our Statute. Our completed statute (Act 40 of 1941) is found in 3 Ark. Stats., §§ 27-341 and 27-342. Insofar as the point here at issue is concerned, the statute provides:

". . . the acceptance by a non-resident owner, chauffeur, operator, driver of any motor vehicle, . . . of the rights and privileges conferred by the laws of the State of Arkansas to drive or operate . . . a motor vehicle upon the public highways of said State as evidenced by his or its operating or causing or permitting a motor vehicle to be operated . . . on such highway in the State of Arkansas shall be deemed equivalent to the appointment by such non-resident owner, . . . of the Secretary of the State of Arkansas . . . to be the true and lawful attorney and agent of such non-resident owner upon whom may be served all lawful process in any action or proceedings against him . . . growing out of any accident or collision in which said non-resident owner or any agent, servant or employee of any such non-resident owner may be involved while operating a motor vehicle on such highway, . . . Service of such process shall be made by serving a copy of the process on the said Secretary of State and such service shall be sufficient service upon the said non-resident...