Plopa v. Du Pre
| Decision Date | 18 May 1950 |
| Docket Number | No. 71.,71. |
| Citation | 327 Mich. 660,42 N.W.2d 777 |
| Parties | PLOPA v. DU PRE. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Jane Plopa brought action against Dorothy V. DuPre, administratrix of the estate of Daniel L. DuPre, deceased, to recover for injuries sustained by plaintiff in an automobile accident involving automobile of the deceased. The Circuit Court for the County of Ionia, Morris K. Davis, J., rendered an order denying motion of defendant to quash service of summons and dismiss cause, and defendants appealed. The Supreme Court, Dethmers, J., held that statute providing that operation on a public highway in the state of a motor vehicle owned by a non-resident, if operated with his consent, express or implied, shall be deemed equivalent to appointment by such non-resident of the Secretary of State to be non-resident's attorney on whom summons may be served in any action growing out of an accident within the state, and that death of non-resident shall not operate to revoke appointment, and that any action growing out of such accident may be prosecuted against non-resident's executor or administrator, was a reasonable exercise of the police power and constitutional, and that plaintiff properly instituted action under such statute against defendant.
Order affirmed.
Gemuend & Barnes, Ionia, for plaintiff and appellee.
Lilly, Luyendyk & Snyder, Grand Rapids, for defendant and appellant.
Before the Entire Bench.
Defendant's decedent, in his lifetime a resident of Lucas County, Ohio, owned an automobile which, while being driven with his consent upon a Michigan highway, collided with an automobile in which plaintiff was a passenger, causing her injuries. Thereafter decedent died and defendant was appointed administratrix of his estate by order of the probate court of Lucas County, Ohio. Plaintiff then brought suit in Ionia County, Michigan, based on the alleged negligence of decedent and his driver. In accord with the provisions of C.L. 1948, § 256.521, for re-enactment see P.A. 1949, No. 300, § 403, Stat.Ann.1949 Cum.Supp. § 9.2103, plaintiff served a copy of the summons upon the secretary of state of the State of Michigan and later caused to be served in Lucas County, Ohio, upon defendant a copy of the summons, declaration and notice of the service of summons upon the secretary of state. Defendant appeared specially and moved to quash service of the summons and to dismiss the cause, asserting that the provisions of the statute for substituted service on a foreign administrator are unconstitutional and that service of process pursuant thereto did not confer jurisdiction over defendant upon the Ionia circuit court. From order denying such motion defendant appeals.
The question thus raised on motion and here on appeal has been considered in two reported cases. In Knoop v. Anderson, D.C., 71 F.Supp. 832, a United States district judge held invalid a comparable provision of an Iowa statute for substituted or constructive service of process upon the foreign administrator of the estate of a nonresident motorist in a case based on the negligent operation of his automobile in Iowa. In Oviatt, Administrator v. Garretson, 205 Ark. 792, 171 S.W.2d 287, the supreme court of Arkansas upheld a statute of that state of like import and the validity of service of process thereunder.
The pertinent provisions of the Michigan statute are:
‘The death of such nonresident shall not operate to revoke the appointment by such nonresident of the secretary of state as his true and lawful attorney upon whom may be served the summons in an action against him growing out of any such accident or collision; and in event of his death, any action growing out of such accident or collision may be commenced or prosecuted against his executor or administrator duly appointed by the state, territory, or district of the United States or foreign country in which said nonresident was domiciled at the time of his death, and service of the summons shall be made upon the secretary of state, and personal service of such notice and the copy of the summons be had upon his executor or administrator, as the case may be, in like manner, with the same force and effect as service upon such nonresident during his lifetime.’
That such statutory provisions for the service of process on a living nonresident are constitutional and not violative of due process and that jurisdiction over him may thus be acquired has been held in Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091. The Michigan statute, like those of many other states, speaks in terms of agency, providing that by use of the state's highways a nonresident motorist shall be deemed to have appointed the secretary of state his agent to accept service of process in certain cases for him. Recognizing that the constitutionality of such statutory provisions has heretofore been upheld, defendant cites authorities for the proposition that agency is revoked by the death of the principal and contends that, in consequence, the agency resulting from the nonresident motorist's use of the highways terminates upon his death.
In passing the...
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