Mittelstadt v. Rouzer, s. 82-348

• Decision Date: 23 December 1982
• Docket Number: 82-349,Nos. 82-348,s. 82-348
• Citation: 328 N.W.2d 467,213 Neb. 178
• Parties: Alfred E. MITTELSTADT, Appellant, v. Dondru D. ROUZER, Marion Tye, and B.J. McAdams, Inc., a corporation, Appellees. Kathaleen M. MITTELSTADT, Appellant, v. Dondru D. ROUZER, Marion Tye, and B.J. McAdams, Inc., a corporation, Appellees.
• Court: Nebraska Supreme Court

Page 467

328 N.W.2d 467

213 Neb. 178

Alfred E. MITTELSTADT, Appellant, v. Dondru D. ROUZER, Marion Tye, and B.J. McAdams, Inc., a corporation, Appellees.

Kathaleen M. MITTELSTADT, Appellant, v. Dondru D. ROUZER, Marion Tye, and B.J. McAdams, Inc., a corporation, Appellees.

Nos. 82-348, 82-349.

Supreme Court of Nebraska.

Dec. 23, 1982.

Syllabus by the Court

1. Corporations: Venue: Service of Process. Under the venue statutes, a nonresident defendant corporation "may be found" in any county within the state in which proper service can be had upon its agent.

2. Corporations: Jurisdiction. Jurisdiction over a foreign corporation may be exercised by consent of such corporation.

3. Corporations: Service of Process: Jurisdiction. By designating an agent upon whom process may be served within this state, a defendant has consented to the jurisdiction in personam by the proper court.

4. Corporations: Service of Process. The validity of service under the Motor Carrier Act, 49 U.S.C. § 321(c) (1976) (now 49 U.S.C. § 10330(b) (Supp. IV 1980)), is not limited to causes of action arising out of commerce transacted by a foreign corporation within the state because the act deals with jurisdiction of the person.

5. Corporations: Service of Process: Jurisdiction. By appointing a resident agent for service as required by the Motor Carrier Act, 49 U.S.C. § 321(c) (1976) (now 49 U.S.C. § 10330(b) (Supp. IV 1980)), a nonresident corporation has consented to jurisdiction within this state at least as to any cause of action arising out of its activities as a motor carrier in interstate commerce.

Kenneth Cobb of Cobb & Rehm, P.C., Lincoln, for appellants.

William E. Langdon of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellees.

KRIVOSHA, C.J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

PER CURIAM.

Plaintiffs in these cases have appealed from orders of the District Court dismissing their petitions following the sustaining of the special appearances filed by the defendant B.J. McAdams, Inc.

The plaintiffs, Alfred E. and Kathaleen M. Mittelstadt, are both residents of Nebraska and brought these actions against the defendant McAdams and others for damages arising out of an automobile accident occurring on July 7, 1979, near Flagstaff, Arizona. The petitions alleged that the driver of the truck causing the accident was at the time an employee of and acting within the scope of her employment for the defendant McAdams. Service was obtained upon McAdams, an Arkansas corporation, by summons served on its resident agent living in Omaha, Nebraska. This agent had been appointed to conform to the requirements of the Motor Carrier Act, 49 U.S.C. § 321(c) (1976) (now 49 U.S.C. § 10330(b) (Supp. IV 1980)). That particular section provides in part as follows: "A motor carrier ... providing transportation subject to the jurisdiction of the [Interstate Commerce] Commission ... shall designate an agent in each State in which it operates ... on whom process issued by a court with subject matter jurisdiction may be served in an action brought against that carrier ...."

The record discloses that McAdams' trucks travel through Nebraska as part of its interstate service, logging something less than 3 percent of its total miles within the state. There was no evidence that McAdams owns property in Nebraska, has customers in Nebraska, or has any contacts within the state other than the use of the Interstate highway system.

The special appearance was sustained on the ground that the State of Nebraska had no jurisdiction over the defendant. The plaintiffs argue that such jurisdiction vested by reason of Neb.Rev.Stat. § 25-511 (Reissue 1979), § 21-20,114 (Reissue 1977), and §§ 25-536 and 25-408 (Reissue 1979).

Section 25-511 simply defines a method of serving process. It provides in part that "A summons against a corporation may be served ... by a copy personally served upon the registered agent of the corporation ...." Section 21-20,114 states in part that "The registered agent so appointed by a foreign corporation authorized to transact business in this state shall be an agent ... upon whom any process ... may be served." However, because McAdams only transacted business in interstate commerce within the state, it was not required to appoint such registered agent provided by Nebraska law. See Neb.Rev.Stat. §§ 21-20,105 and 21-20,112 (Reissue 1977).

The plaintiffs' assertion that the courts of this state may exercise personal jurisdiction over McAdams under the provisions of § 25-536, the so-called "long arm statute," is without merit. The cause of action neither arose from the transaction of business by the defendant within the state, nor was the injury caused by act or omission occurring within the state or outside this state while the defendant regularly did or solicited business within the state, as required by that section.

Also relied upon by the plaintiffs as vesting jurisdiction over the defendant is § 25-408, which provides that an action such as the present one may be brought against a foreign corporation in any county "where said defendant may be found." Although this is but a venue statute, it suggests the answer to our inquiry.

A defendant "may be found" in any county in which proper service can be had upon its agent. Juckett v. Brennaman, 99 Neb. 755, 157 N.W. 925 (1916). Jurisdiction over a foreign corporation may be exercised by consent of such corporation. Brown v. Globe Laboratories, Inc., 165 Neb. 138, 84 N.W.2d 151 (1957). By designating an agent upon whom process may be served within this state, a defendant has consented to the jurisdiction in personam by the proper court. Esperti v. Cardinale Trucking Corp., 263 A.D. 46, 31 N.Y.S.2d 253 (1941). The validity of service under the Motor Carrier Act, 49 U.S.C. § 321(c) (1976) (now 49 U.S.C. § 10330(b) (Supp. IV 1980)), is not limited to causes of action arising out of commerce transacted by a foreign corporation within the state because the act deals with jurisdiction of the person. Esperti, supra.

In Normann v. Burnham's Van Service, 73 So.2d 640 (La.App.1954), appears the following language at 646: "There is no question that if plaintiff had caused citation in the suit to be served on the agent designated by appellant [defendant] pursuant to the Federal Act, the action could have been conducted as one in personam, as appellant would have been effectively brought into court by virtue of such citation." See, also, Sansbury v. Schwartz, 41 F.Supp. 302 (D.D.C.1941); Shapiro v. Southeastern Greyhound Lines, 155 F.2d 135 (6th Cir.1946).

However, the defendant has cited to us three cases which it claims are determinative of the issue in its favor: Clark v. Babbitt Brothers, Inc., 260 S.C. 378, 196 S.E.2d 120 (1973); King v. Motor Lines, 219 N.C. 223, 13 S.E.2d 233 (1941); and Davies v. Mahanes, 88 F.Supp. 550 (D.Md.1949). We believe that the cases are all distinguishable.

The facts in Clark were remarkably similar to those of the instant case. A resident of South Carolina brought suit in a court of that state against a Wisconsin corporation for damages sustained by reason of an accident in Kentucky. Service was had on the defendant's resident agent appointed under the terms of the Motor Carrier Act. In affirming the action of the trial court, which had dismissed the service, the South Carolina court pointed out that the cause of action arose some 2 months after the date when the defendant ceased maintaining an agent for the transaction of business, or owning any property or transacting any business within the State of South Carolina.

King involved a situation wherein the residence of both parties and the accident site were all located in Tennessee. The North Carolina court refused to recognize service upon the resident agent appointed under the provisions of the Motor Carrier Act. In doing so, it relied on Old Wayne Life Ass'n v. McDonough, 204 U.S. 8, 27 S.Ct. 236, 51 L.Ed. 345 (1907), as "authority for the position that such attempted service will not suffice on a cause of action arising in another jurisdiction." King, supra at 224, 13 S.E.2d at 234. However, Old Wayne did not involve service upon a named resident agent, nor did the cause of action...