Knoop v. Anderson

• Decision Date: 08 April 1947
• Docket Number: Civil Action No. 456.
• Citation: 71 F. Supp. 832
• Parties: KNOOP et al. v. ANDERSON et al.
• Court: U.S. District Court — Northern District of Iowa

71 F. Supp. 832

KNOOP et al. v. ANDERSON et al.

Civil Action No. 456.

District Court, N. D. Iowa, W. D.

April 8, 1947.

COPYRIGHT MATERIAL OMITTED

Stewart & Hatfield, of Sioux City, Iowa, for plaintiffs.

Stilwill, Brackney, Stilwill & Wilson, of Sioux City, Iowa, for defendants.

GRAVEN, District Judge.

Case involving validity of Iowa statutory provision providing for service on foreign executors and administrators in motor vehicle cases. On April 22, 1946, the defendant Merlin Anderson was driving a truck on a street in the City of Sioux City, Woodbury County, Iowa. The truck was owned by his father Chris Anderson. It is the claim of the plaintiff that the defendant Merlin Anderson operated the truck in such a negligent manner that he ran into and severely injured the plaintiff. The plaintiff is a resident and citizen of the State of Iowa residing in the City of Sioux City, Woodbury County, Iowa. Woodbury County, Iowa, is in the Northern District of Iowa. The truck was owned by Chris Anderson the father of Merlin Anderson. Merlin Anderson was operating the truck at the time and place with the knowledge and consent of Chris Anderson. The defendant Merlin Anderson was and is a resident of the State of South Dakota. Chris Anderson was a resident of South Dakota. Subsequent to the claimed mishap, Chris Anderson died intestate a resident of the State of South Dakota. The defendant Alma B. Anderson was appointed administratrix of the estate of Chris Anderson by the South Dakota probate court and qualified as such and is still acting as such. The decedent Chris Anderson owned no property in Iowa at the time of his death. No ancillary administration has been had or is being had in the State of Iowa. Subsequently the plaintiff brought an action in the state district court in Woodbury County, Iowa, asking for damages for his injuries in which Merlin Anderson and Alma B. Anderson, administratrix of the estate of Chris Anderson, deceased, were named as defendants. Service was made upon both defendants under the Iowa Non-Resident Motorist Service Act. Upon application of both defendants the action was removed to this court upon the ground of diversity of citizenship. The defendants subsequently filed a joint answer. This court on its own motion set down for hearing the question as to whether it had jurisdiction as to Alma B. Anderson, administratrix of the estate of Chris Anderson, deceased. A hearing was held on that question and the question of jurisdiction submitted to the Court. The pertinent portions of the Iowa Non-Resident Motorist Service Act (Code of Iowa 1946) are as follows:

"321.498 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 public safety 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.

"321.499 The term `person', as used in section 321.498 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.

"4. The executor or administrator of the estate of the owner or operator of the motor vehicle."

"321.501 Plaintiff in any such action shall cause the original notice of suit to be served as follows:

"1. By filing a copy of said original notice of suit with said commissioner, together with a fee of two dollars, and

"2. By mailing to the defendant, and to each of the defendants if more than one, within ten days after said filing with the commissioner, by restricted registered mail addressed to the defendant at his last known residence or place of abode, a notification of the said filing with the commissioner."

"321.503 The term `restricted registered mail' means mail which carries on the face thereof, in a conspicuous place where it will not be obliterated, the indorsement, `Deliver to adressee only', and which also requires a return receipt.

"321.504 In lieu of mailing said notification to the defendant in a foreign state, plaintiff may cause said notification to be personally served in the foreign state on the defendant by any adult person not a party to the suit, by delivering said notification to the defendant or by offering to make such delivery in case defendant refuses to accept delivery."

"321.507 Actions against nonresidents as contemplated by this law may be brought in the county of which plaintiff is a resident, or in the county in which the injury was received, or damage done."

"321.511 The dismissal of an action after the nonresident has entered a general appearance under the substituted service herein authorized, shall bar the recommencement of the same action against the same defendant unless said recommenced action is accompanied by actual personal service of the original notice of suit on said defendant in this state."

In Iowa all streets are classified as highways. Kelroy v. City of Clear Lake, 1942, 232 Iowa 161, 5 N.W.2d 12, 16.

The original Act was first enacted by the Iowa Legislature in 1931 as Chapter 123 of the Laws of the 44th General Assembly. There are a number of decisions of the Iowa Supreme Court having to do with the Iowa Non-Resident Motorist Service Act, but none of them bear upon the question involved in the present case. Jermaine v. Graf, 1939, 225 Iowa 1063, 283 N.W. 428; Welsh v. Ruopp, 1940, 228 Iowa 70, 289 N.W. 760; Green v. Brinegar, 1940, 228 Iowa 477, 292 N.W. 229; Gelvin v. Hull, 1940, 228 Iowa 1149, 293 N.W. 520; Schoulte v. Great Lakes Forwarding Corporation, 1941, 230 Iowa 812, 298 N.W. 914; Halse v. La Crescent Co., 1941, 231 Iowa 231, 1 N.W.2d 202; Skutt v. Dillavou, 1944, 234 Iowa 610, 13 N.W.2d 322, 155 A.L.R. 327. See also Glenn v. Holub, D.C. Iowa 1941, 36 F.Supp. 941; Ransom v. Sipple Truck Lines, D.C.Iowa 1943, 52 F.Supp. 521; Kemp v. Creston Transfer Co., D.C. Iowa 1947, 70 F.Supp. 521.

The earliest Non-Resident Motorist Service Act was enacted by New Jersey in 1908, P.L.1908, p. 613. That Act provided that non-residents could not drive an automobile upon the public highways of New Jersey without first executing a written instrument designating the Secretary of State as attorney for the service of process in actions growing out of the operation of the automobile in that state. The constitutionality of that statute was upheld in the case of Kane v. State of New Jersey, 1916, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222. In 1923 the Massachusetts Legislature enacted a statute, Stat.1923, c. 431, Sec. 2, which provided that the use of the highways of that state by a non-resident should be deemed to be equivalent to the appointment of the local registrar as his attorney for the service of process in any action for damages growing out of the operation in that state and should be deemed an agreement that process so served should be of the same force and validity as if served upon him personally. The constitutionality of that statute was upheld in the case of Hess v. Pawloski, 1927, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091. All of the 48 states and the District of Columbia now have Acts which provide that the operation of a motor vehicle upon their highways by a non-resident shall be deemed to constitute a designated public officer in the state the agent or attorney of the non-resident for the service of process in actions growing out of the operation of motor vehicles in the state. Those Acts now appear as follows:

Alabama: Ala.Code of 1928, 1936 Cum. Supp.Annot. § 9454(1), Code 1940, Tit. 7, § 199.

Arkansas: Pope's Ark.Stats.1944 Supp. § 1375.

Arizona: 5 Ariz.Code Annot.1939, § 66-226.

California: Deering's Calif. Vehicle Code, § 404.

Colorado: 2 Colo.Stats.1935 Annot.1946 Cum.Supp. c. 16, § 48(1).

Connecticut: 2 Gen.Stats.1930, § 5473.

Delaware: Rev.Code of 1935, § 4590.

District of Columbia: Dist. of Col.Code, 1940 Ed., § 40-403.

Florida: Fla.Stats. of 1941, §§ 47.29-47.32, F.S.A.

Georgia: Ga.Laws of 1937, No. 444, p. 732.

Idaho: Idaho Code, Annot.1940 Supp. § 48-5A32.

Illinois: Chapter 95½, Smith-Hurd Ill. Annot.Stat. § 23.

Indiana: 8 Burns' Indiana 1933 Stats. Annot. § 47-1043.

Iowa: 1 Code of Iowa, 1946, Secs. 321.498, 321.499.

Kansas: Gen.Stat.Annot.1935, 8-401, 8-402.

Kentucky: Ky.1946 Rev.Stat. 188.020.

Louisiana: 4 Dart's La.Gen.Stat. § 5296, Act No. 184 of 1932.

Maine: 1 Rev.Stat. of Maine 1944, c. 19, § 59.

Maryland: 2 Flack's Annot.Code of Md. 1939, art. 56, §§ 188, 189.

Massachusetts: 3 Annot.Laws of Mass. c. 90, §§ 3A, 3B.

Michigan: 8 Mich.Stats.Annot. § 9.1701, Comp.Laws Supp.1946, § 4790.

Minnesota: 1 Minn.Stats. of 1945 and M.S.A. § 168.25, and § 170.55.

Mississippi: 7 Miss.Code of 1942, Annot. § 9352-61.

Missouri: 18 Mo.Rev.Stats.Annot. §§ 8410.1 to 8410.14.

Montana: 1 Rev.Code of Montana of 1935, §§ 1760.12, 1760.13.

Nebraska: 2 Rev.Stat. of Neb.1943, § 25-530.

Nevada: 1 Nev. Compiled Laws Supp. 1931-1941, § 4441.01.

New Hampshire: 1 Rev.Laws of N.H. 1942, c. 116, §§ 42-45.

New Jersey: 2 Rev.Stats of N.J., 1937, 39:7-1 to 39:7-8, N.J.S.A.

New Mexico: 5 N.Mex.Stats.1941 Annot. § 68-1003.

New York: 62A McKinney's Consol. Laws of N.Y.Annot. c. 71, Vehicle and Traffic Law, § 52.

North Carolina: 1 Gen.Stats. of No. Car. §§ 1-105 to 1-107.

North Dakota: 3...