State ex rel. Boyer v. Weinstein, 31681

• Decision Date: 17 November 1964
• Docket Number: No. 31681,31681
• Citation: 384 S.W.2d 275
• Parties: STATE of Missouri at the relation of Dan BOYER, Relator, v. Honorable Noah WEINSTEIN, Judge of the Circuit Court of St. Louis County, Respondent.
• Court: Missouri Court of Appeals

Page 275

384 S.W.2d 275

STATE of Missouri at the relation of Dan BOYER, Relator, v. Honorable Noah WEINSTEIN, Judge of the Circuit Court of St Louis County, Respondent.

No. 31681.

St. Louis Court of Appeals, Missouri.

Nov. 17, 1964.

Carter, Fitzsimmons & Brinker, Bernard C. Brinker, Clayton, for relator.

London & Greenberg, Burton M. Greenberg, St. Louis, for respondent.

ANDERSON, Judge.

This is an original proceeding in prohibition brought by relator, Dan Boyer, to prevent respondent as Judge of the Circuit Court of St. Louis County from assuming jurisdiction of a case filed in said court styled Richard Pacanowski, plaintiff, vs. Dan Boyer, defendant, it being cause numbered 251,107, of the causes in said Circuit Court. Upon the filing of said petition for the writ in this court our preliminary writ issued, to which respondent in due time filed his return. Thereafter, relator filed a motion for judgment on the pleadings, and the cause was submitted to this court upon briefs and oral arguments.

The facts, which appear from the pleadings are not in dispute. Richard Pacanowski, plaintiff in the Circuit Court case, is a resident of St. Louis County, Missouri, and Dan Boyer, defendant, relator here, is a resident of the State of Indiana. Pacanowski and Boyer were involved in a two car collision on the premises owned by Famous-Barr Company, which was used by said company as a parking lot available to its customers at its Northland Store, 7601 West Florissant Avenue in the County of St. Louis. The collision occurred at the intersection of two driving lanes on said premises. Thereafter, Pacanowski instituted the suit in question, it being an action for damages for personal injuries alleged to have been sustained by him as a result of the alleged negligence of Dan Boyer. No personal service of summons was obtained on Boyer. Pacanowski sought to obtain service on Boyer by means of the so called 'Long Arm Statute.' Sections 506.200 to 506.320, RSMo 1959, V.A.M.S. The petition and summons in said cause was served on the Secretary of State of Missouri in accordance with Section 506.240, RSMo 1959, V.A.M.S., and as provided in paragraph 2 of said section, the Secretary of State mailed to defendant, by registered mail, a notice of such service together with a copy of the process and petition served upon him.

Thereafter, defendant, Dan Boyer, appeared specially and filed a motion to quash the service and sheriff's return showing service on the Secretary of State, and to dismiss the action on the grounds that the court could not acquire jurisdiction over the person of defendant by service in accordance with Sections 506.210 and 506.240, RSMo 1959, V.A.M.S., because defendant, a nonresident, was not, at the time of the collision, operating his motor vehicle on a public highway of the state, but on private property. The respondent overruled said motion. Relator then filed in this court his petition for a writ of prohibition.

In this court, relator contends, as he did in the Circuit Court, that the service of summons on the Secretary of State is invalid because the cause of action by Richard Pacanowski against relator did not arise out of the use and operation of his motor vehicle on a public highway in this state.

The statute (Section 506.210 RSMo 1959, V.A.M.S.), so far as applicable to the matter before us provides:

'The use and operation of a motor vehicle or trailer in this state on the public highways thereof by a person who is a nonresident of this state shall be deemed:

'(1) An agreement by him that he * * * shall be subject to the jurisdiction of the courts of this state in all civil actions and proceedings brought against him * * * by either a resident or a nonresident plaintiff, for damages to person or property, * * * growing or arising out of such use and operation; and

'(2) An appointment by such nonresident * * * of the secretary of state of Missouri as his lawful attorney and agent upon whom may be served all process in suits pertaining to such actions and proceedings;

'(3) An agreement by such nonresident that any process in any suit so served shall be of the same legal force and validity as if personally served in this state.'

The phrase 'such use and operation' in subsection (1) of the foregoing statute must refer to 'use and operation of a motor vehicle or trailer in this state on the public highways thereof,' which appear in the first paragraph of said section, or else the word 'such' would have no meaning.

There are no Missouri cases in point on the issue involved herein. However, the better rule seems to us to be that where the statute providing for substituted service on a nonresident is limited to actions growing out of the operation of motor vehicles upon the highways of the state, nonresidents involved in automobile accidents occurring on private property are not amenable to service under such statute; that the cause of the injury must arise on the highway. Brauer Machine and Supply Co. v. Parkhill Truck Co., 383...