Rovinski v. Rowe

• Decision Date: 30 November 1942
• Docket Number: No. 9152.,9152.
• Citation: 131 F.2d 687
• Parties: ROVINSKI v. ROWE.
• Court: U.S. Court of Appeals — Sixth Circuit

131 F.2d 687 (1942)

ROVINSKI v. ROWE.

No. 9152.

Circuit Court of Appeals, Sixth Circuit.

November 30, 1942.

F. N. Trowbridge, of Green Bay, Wis., and Roberts P. Hudson, of Sault Ste. Marie, Mich. (North, Bie, Duquaine, Welsh & Trowbridge, of Green Bay, Wis., on the brief), for appellant.

I. G. Alk, of Green Bay, Wis. (George Barstow of Menominee, Mich., and Alk, Kresky, Cohen & Hughes, of Green Bay, Wis., on the brief), for appellee.

Before HICKS, HAMILTON, and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

This case comes to us on appeal from a district court judgment on the verdict of a jury awarding damages against the individual appellant, Stanley J. Rovinski, in a personal injury action brought against him and Wilbur E. Lied and wife, who were exonerated by the jury.

Appellee, Robert S. Rowe, a resident of Wisconsin, brought his action in the Western District of Michigan and alleged in his complaint that the three defendants were residents and citizens of Michigan.

(1) Appellant attacked the service of process upon him as not in conformity with Civil Procedure Rule 4(d) (1), 28 U.S.C. A. following section 723c, which requires that service shall be made "upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process."

The return of the officer upon the summons certified service by leaving a copy of the summons and of the complaint at the dwelling house and usual place of abode and residence of appellant with his mother, Valerie H. Rovinski, 1308 Spies Avenue, City of Menominee, Michigan, "a person of suitable age and discretion then and there residing."

Appellee had instituted a prior action against appellant for damages on the same cause of action in the Circuit Court of Menominee County, Michigan. Appellant moved to dismiss that action upon the ground that he was a resident of Michigan, and therefore not amenable to service in the state court under the non-resident motorist statute of Michigan. In an affidavit in support of his motion to dismiss the state court action, appellant declared himself to be a resident of the City of Menominee, County of Menominee, and State of Michigan, where he was born and had resided continuously for 21 years. He made oath that, in 1918, he enlisted in the United States Navy and served therein for a year and a half; and, subsequently, was employed as a Steamboat Inspector for the United States Government. He swore positively that "he has at no time ever established any other residence than 1308 Spies Avenue, Menominee, Michigan; that he has established no household other than the aforementioned 1308 Spies Avenue, Menominee, Michigan."

In the instant action, appellant moved to dismiss upon the ground that no jurisdiction had been obtained over his person by the attempted service under Civil Procedure Rule 4(d) (1). His supporting affidavit set forth that, after his discharge from the United States Navy, he returned to Menominee, Michigan, where he resided until 1920, when he went to New York City and was occupied as marine engineer until 1934. He asseverated that, during such period, his dwelling and usual place of abode was at different places in the East and, for a time, on board ship. His affidavit asserted that, in 1936, he became an employee of the Department of Commerce, Bureau of Marine Inspection and Navigation, that his employment kept him away from Menominee, Michigan; and that his usual place of abode and dwelling place was in different places in the United States.

The affidavit stated further that, for the past two years, his usual place of abode and dwelling place had been continuously in Duluth, Minnesota; that his widowed mother resides in Menominee, Michigan, to which he has returned during the past twenty years "only to visit her"; and that he has considered his legal residence as Menominee, Michigan, but that his dwelling place and usual place of abode has been elsewhere.

The district judge entered an order denying appellant's motion to dismiss for want of jurisdiction over his person without prejudice to the production at the trial of further testimony concerning his dwelling place or usual place of abode, and permitting a renewal of the motion to dismiss at the conclusion of the trial.

In his testimony at the trial, appellant admitted that he had always considered and held out No. 1308 Spies Avenue, Menominee, Michigan, as his home; that he paid for and had listed a telephone in his own name at that home; that he kept some clothing and odds and ends there; that there was always a bedroom ready for his occupancy when he returned home and that he invariably occupied it; and that he was unmarried and maintained no other household of his own. He conceded that he never voted elsewhere than in the State of Michigan.

Upon these facts, the district court held the service of process good; and, pointing to the distinctions in the authorities between the terms "place of abode" and "place of residence," said that, upon last anlaysis, the question of service must be resolved by "what best serves to give notice to a defendant that he is being served with process, considering the situation from a practical standpoint."

The district judge reasoned: "Taking all the circumstances in this case, I can see no surer way of a person knowing that he has been asked to come into court to answer to some complaint against him for damages than that notice should be left at a place which has been throughout his life the place of his legal residence, the place where his parents lived, where his mother lives now, the place called `Home' and the one place to which he returns when he has the opportunity to do so, * * *." The court stressed the fact that the notice had been left with appellant's mother.

In construing Civil Procedure Rule 4(d) (1) liberally, the district court effectuated the declared purpose of the Supreme Court Advisory Committee in submitting a service of process rule, which would provide "a good deal of freedom and flexibility in service." See statement of Dean (now Circuit Judge) Clark in Proceedings of the Institute on Federal Rules, Cleveland Session, July 1938, page 204. That the rule should be liberally construed seems logical, when consideration is given to the fact that uncertainty of its applicability to varying situations would be increased by strict construction. This is apparent from the irreconcilable conflict among state courts upon the meaning and interpretation of the expression "usual place of abode." We have been cited no pertinent decision of the courts of Michigan; and it would seem profitless to lengthen this opinion by reviewing conflicting state court authorities.

The wide diversity of opinion may be illustrated by two examples. On the one hand, delivery of process to defendant's wife at an apartment in Miami Beach, Florida, where his family had been living for about two months and where he had previously visited them, but from which he had departed to his permanent home in another state, was held sufficient under a Florida statute, Comp.Gen.Laws 1927, § 4246, providing for service at the "usual place of abode" of the defendant. State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145, 127 A.L.R. 1263. On the other hand, delivery of service of process to the father of a minor defendant at the family home where the defendant had lived up to the time of his enlistment in the United States Army less than one month previously was held insufficient under a New Jersey statute, N.J.S.A. 2:26-43 et seq., 2:27-59 et seq., providing for service at the "usual place of abode" of the defendant. Eckman v. Grear, 187 A. 556, 14 N.J. Misc. 807.

The only pertinent reported Federal decision is Skidmore v. Green, D.C.N.Y., 33 F.Supp. 529, 530, wherein service was upheld under Rule 4(d) (1) against a peregrinating policeman, who, after retiring from the New York force, spent most of his time traveling about the country in an automobile and trailer. Process had been delivered at the home of defendant's brother which, in the application for his New York automobile license, defendant had given as his address. In his application for his South Carolina automobile license, he had stated that he was a resident of New York. The district judge commented that "so far as the migratory nature of his life" permitted of any place of abode or dwelling house, that place was his brother's home.

In our judgment, Civil Procedure Rule 4(d) (1) should be construed liberally, to effectuate service where actual notice of suit has been received by the defendant. On the facts of this case, the district court properly held the service of process valid.

(2) Appellant insists that the district court erred in denying his motion for a directed verdict, and in declining to set aside the verdict of the jury. His contention is that he violated no legal duty to appellee in the circumstances of the case; that appellant's negligence was not the proximate cause of appellee's injury; and that the appellee was guilty of such contributory negligence as to bar his recovery.

The record reveals that, at about six o'clock on the dark and foggy morning of November 15, 1939, Mrs. Mike Elias, a hospital nurse, was driving a 1935 model delivery truck in a northerly direction on a wet United States highway. At a point about fourteen miles north of Menominee, Michigan, appellant, proceeding in the same direction, drove a 1938 Dodge Coupe into collision with the rear portion of the Elias motor vehicle. After the collision, the nurse's automobile, with a broken gas tank and a useless rear light, was standing upon the right side of...