Morrow v. Asher

• Decision Date: 09 January 1932
• Docket Number: No. 4292.,4292.
• Citation: 55 F.2d 365
• Parties: MORROW v. ASHER.
• Court: U.S. District Court — Panama Canal Zone

55 F.2d 365 (1932)

MORROW v. ASHER.

No. 4292.

District Court, N. D. Texas, Dallas Division.

January 9, 1932.

McCormick, Bromberg, Leftwich & Carrington, of Dallas, Tex., for the motion.

John W. West, of Dallas, Tex., opposed.

ATWELL, District Judge.

This suit originated in the state court. It was brought by a citizen of Texas against a citizen of California, and it is alleged that, "on or about January 29th, 1931, one E. E. McNey was the agent, servant and employee, of Alfred Asher, and was in his usual course of business, and was carrying on the business of his employer, the said Alfred Asher, and on said date was operating a car owned by the said defendant and was using the highways of the state of Texas for the purpose of transporting a car from Texas to California." It was then alleged that McNey carelessly and negligently drove the automobile into the car of the plaintiff, inflicting serious and permanent injuries upon plaintiff. There were other allegations touching the rate of legal and illegal speed and lookout. Thirty thousand dollars damages are asked.

Service was had under section 2039a of the Revised Statutes of the state of Texas (added by Acts 41st Leg. (1929), c. 125 Vernon's Ann. Civ. St. art. 2039a), which reads, in part, as follows: "The acceptance by a non-resident of this State of the rights, privileges and benefits of the public highways * * * as evidenced by his operating a motor vehicle or motorcycle on any such public highway * * * shall be deemed equivalent to an appointment by such non-resident of the Chairman of the State Highway Commission of this State, or his successor in office, to be his true and lawful attorney upon whom may be served all lawful process in any civil action or proceeding against him growing out of any accident or collision in which said non-resident may be involved while operating a motor vehicle * * * on such public highway * * * and said acceptance 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 if served upon him personally. Service of such process shall be made by leaving a copy of the process in the hands of the Chairman of the State Highway Commission of Texas, or at his office, and such service shall be sufficient service upon the said non-resident; provided that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff to the defendant, and the defendant's return receipt and the plaintiff's affidavit of compliance herewith are appended to the return of the officer serving such process upon the Chairman of the State Highway Commission. The Court in which the action or proceeding is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action."

Appearing merely for that purpose, the defendant moves to quash the service, and contends that the statute means exactly what it says. That he was not "operating" a motor vehicle at the time of the alleged injury to the plaintiff.

If the statute means that the use of the Texas highways by a servant, or an employee, renders the employer, or principal, liable for a tort committed by such servant or employee, to be served in the manner indicated, then this motion should be overruled. If it only means that the person who actually operates the car at the time of an alleged tort could be so served, then and in that event the motion should be sustained.

The case of Hess v. Pawloski, 274 U. S. at page 355, 47 S. Ct. 632, 633, 71 L. Ed. 1091, reviews briefly and pointedly the state of the law with reference to the service of process of a court of one state upon one not domiciled therein. Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Goldey v. Morning News, 156 U. S. 518, 15 S. Ct. 559, 39 L. Ed. 517; McDonald v. Mabee, 243 U. S. 90, 37 S. Ct. 343, 61 L. Ed. 608, L. R. A. 1917F, 458; Flexner v. Farson, 248 U. S. 289, 39 S. Ct. 97, 63 L. Ed. 250.

The constitutional right (Const. art. 4, § 2) of a citizen of one state "to pass through, or to reside in any other state for purposes of trade, agriculture, professional pursuits, or otherwise," Hess v. Pawloski, supra, and the prohibition of state legislation discriminating against the citizens of other states, must be harmonized with the right of a state to exercise and enforce regulations reasonably calculated to promote care on the part of "residents and nonresidents alike, who use its highways," in propelling dangerous motor vehicles. The rapidity with which the motor-driven vehicle passes from state to state, and from point to point, and the extreme hardship of requiring the damaged citizen within such territory to follow the operator into other jurisdictions, is sufficient ground for the new method of service approved in that case.

Thereafter the Supreme Court, in Wuchter v. Pizzutti, 276 U. S. 13, 48 S. Ct. 259, 72 L. Ed. 446, 57 A. L. R. 1230, held that a New Jersey statute which had no provision making it reasonably probable that notice of such service would be communicated to the defendant, was lacking in due process of law.

It will be noted that the Texas statute predicates the appointment by the nonresident of the chairman of the state highway commission, as his attorney, upon whom service may be had, upon "his operating a motor vehicle on the highway." The word "operate" means to "work or use a machine; to perform some manual act, or series of acts; to keep a machine working or in operation." New Century.

When used in the intransitive, it means to have or produce a desired result; to act effectively; to effect any result. Union Tank Line Company v. Richardson, 183 Cal. 409, 191 P. 697. Under Hours of Service Act (45 USCA §§ 61-66), "operated," means more than "kept open." U. S. v. Boston and Maine (D. C.) 265 F. 800.

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