Kohanovich v. Youree

• Decision Date: 07 January 1959
• Citation: 1 Storey 440,147 A.2d 655,73 A.L.R.2d 1347,51 Del. 440
• Parties: , 51 Del. 440, 73 A.L.R.2d 1347 Peter KOHANOVICH, Plaintiff Below, Appellant, v. Cleo L. YOUREE, Defendant Below, Appellee.
• Court: Supreme Court of Delaware

Page 655

147 A.2d 655

1 Storey 440, 51 Del. 440, 73 A.L.R.2d 1347

Peter KOHANOVICH, Plaintiff Below, Appellant, v. Cleo L. YOUREE, Defendant Below, Appellee.

Supreme Court of Delaware.

Jan. 7, 1959.

John M. Bader, Wilmington, for appellant.

George L. Sands, Wilmington, for appellee.

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

WOLCOTT, Justice.

This is an appeal from a judgment of the Superior Court of New Castle County quashing service of substituted process under 10 Del.C. § 3112(a) and dismissing the complaint.

The action was for personal injury sustained by the plaintiff as a result of an automobile accident occurring between the plaintiff's car and the defendant's car. The defendant was a non-resident of Delaware at the time of the accident. The accident occurred on the parking lot of the Tide Water Oil Company located at Delaware City in New Castle County.

The action was instituted and service attempted to be had upon the non-resident defendant pursuant to 10 Del.C. § 3112(a), which provides as follows:

'(a) Any non-resident owner, operator or driver of any motor vehicle, not registered under the laws of this State providing for the registration of motor vehicles, who accepts the privilege extended by law to non-residents of this State to operate or drive such motor vehicles on the public streets, roads, turnpikes or highways of this State by operating or driving such motor vehicle or by having the same operated or driven on any public street, road, turnpike or highway of this State shall by such acceptance of the privilege be deemed thereby to have appointed and constituted the Secretary of State of this State, his agent for the acceptance of legal process in any civil action against such non-resident owner, operator or driver arising or growing out of any accident or collision occurring within this State in which such motor vehicle is involved. The acceptance shall be a signification of the agreement of such non-resident that any such process when so served shall be of the same legal force and validity as if served upon such non-resident personally within this State.'

The defendant moved to dismiss the complaint and quash the summons on the ground that the Superior Court lacked jurisdiction over the person of the defendant for the reason that the accident did not occur on a 'highway' of the State of Delaware, but in fact occurred on a privately-owned parking lot on the premises of Tide Water Oil Company. The summons was ordered quashed and, it appearing that there was no other available means of obtaining jurisdiction over the defendant, the complaint was dismissed. Plaintiff appealed.

Plaintiff makes two arguments in support of his appeal. The first argument is based upon the fact that in recodifying the non-resident motor vehicle operator's statute, which was first enacted as 1935 Code, § 4590, the phrase hereafter enclosed in brackets was omitted in the codification of the statute which now appears as 10 Del.C. § 3112(a):

'* * * In any civil action against such non-resident owner, operator or driver arising or growing out of any accident or collision occurring within this State in which such motor vehicle, [operated as aforesaid], is involved;'

Based upon the omission in the recodification and in reliance upon the decision of this Court in Monacelli v. Grimes, 9 Terry 122, 99 A.2d 255, plaintiff argues that there has been an amendment in the statute which clearly makes it applicable to accidents occurring on privately-owned property.

We do not think the plaintiff's first argument is sufficient to require a reversal of the judgment for the reason that we think it probable that the omission of the phrase did not enlarge the scope of the statute as first enacted.

Plaintiff's second argument is that 10 Del.C. § 3112(a) was intended to devise a means of obtaining jurisdiction over non-resident operators of motor vehicles in Delaware in civil actions seeking damages as a result of accidents of collisions occurring within the State of Delaware whether or not such accidents occur on highways or privately-owned properties.

As we noted in Castelline v. Goldfine Truck Rental Service, 10 Terry 155, 112 A.2d 840, 841, the purpose of 10 Del.C. § 3112(a) is to provide that by use of Delaware highways 'a non-resident shall thereby be deemed to have appointed the Secretary of State of Delaware as his agent for the acceptance of service of process in any civil action growing out of an accident in which the motor vehicle of the non-resident is involved' and thus make the non-resident subject to suit in Delaware. The second argument of the plaintiff presents a question of statutory construction to be resolved, if possible, in the light of the legislative intent in enacting the original statute. Once that intent is determined, it must be given...