State Ex Rel. Cochran v. Lewis

• Decision Date: 28 February 1935
• Citation: 159 So. 792,118 Fla. 536
• Court: Florida Supreme Court
• Parties: STATE ex rel. COCHRAN v. LEWIS, Judge, et al.

159 So. 792

118 Fla. 536

STATE ex rel. COCHRAN v. LEWIS, Judge, et al.

Florida Supreme Court, Division A.

February 28, 1935

Original application by State of Florida, on the relation of S. C Cochran, for a writ of mandamus to be directed to Miles W Lewis, as Judge of the Circuit Court in and for Duval county Fla., commanding the respondent to strike out from the record his order quashing the service upon the defendants in a cause pending before him, and to proceed to hearing and determination of the cause.

Peremptory writ granted.

COUNSEL Evan T. Evans, of Jacksonville, for petitioner.

Cockrell & Cockrell and John W. Muskoff, all of Jacksonville, for respondent.

Marks Marks, Holt, Gray & Yates, of Jacksonville, amici curiae.

OPINION

BROWN Justice.

This suit involves the constitutional validity of chapter 14765, of the Laws of 1931, which is entitled:

'An Act to Provide for the Service of Process in Civil Suits Against Nonresident Motor Vehicle Operators, for the Giving of Notice to Such Defendants of the Institution of Such Suits, and Prescribing the Manner in Which Proof of Such Service Shall be Made, and Providing for a Fee to be Paid to the Secretary of State for His Services in Connection Therewith.'

We deem it unnecessary to copy the body of the act in this opinion, as it is available to the bench and bar of the state in the published volume of the General Laws of 1931, above referred to. The body of the act is also practically identical, both in its language and in its provisions, with the New Jersey act, which is copied in full in the case of Cohen v. Plutschak (D. C.) 40 F. (2d) 727, hereinafter referred to.

S. C. Cochran, a resident of the state of Florida, brought suit in the circuit court of Duval county against W. E. Piper and the Crystal Tissue Company, a corporation, resident of the atate of Ohio, for damages for personal injuries alleged to have been sustained by the plaintiff as a result of the careless and negligent operation of an automobile upon one of the public highways in Duval county, Fla., which automobile was, at the time of the injury complained of, being driven by W. E. Piper.

The first county of the declaration charged that said Crystal Tissue Company, a corporation, by and through its servant and employee, the defendant Piper, was operating the automobile at the time of the accident, and that said Piper was at the time acting in the course of his employment as such servant and employee.

The second count alleges that the Crystal Tissue Company was the owner of the automobile which was at the time being operated by said Piper with the knowledge and consent of said owner.

The third count alleges that at the time of the accident the said corporation, by and through its chauffeur, said defendant Piper, was operating said automobile.

The counts of the declaration also show that the automobile was not licensed under the laws of the state of Florida providing for the registration and licensing of motor vehicles, and states the resident addresses of each of the two defendants in the state of Ohio, and also alleges that the plaintiff is, and was, at the time of the injury, a resident of the state of Florida.

Service of process upon the defendants was made under the provisions of chapter 14765, by serving the original and a copy of the summons ad res upon the secretary of state, and sending of notice of such copy of such summons and declaration by the secretary of state to the respondent defendants by registered mail, and the respective defendants' return receipts, and there is also set forth the affidavit of the secretary of state showing compliance with the act, and the filing of same in the office of the clerk of the court where the suit was brought, as provided in section 2 of said act.

Each of the defendants specially appeared and filed motions to quash the attempted service of process and return purporting to show the same, upon various grounds, which special appearance was expressly limited for the sole purpose of thus contesting the jurisdiction of the court over the persons of the defendants. The grounds of the respective motions attacked the validity of chapter 14765 for various alleged reasons, but we will only discuss those grounds which were presented and insisted upon in the briefs, and which we think call for any discussion.

The circuit judge sustained and granted said motions to quash and set aside the returns made upon the summons as to each of said defendants, whereupon the plaintiff S. C. Cochran filed in this court a petition for a writ of mandamus, commanding the circuit judge to strike from the record his order quashing the service upon the defendants, and to proceed to a hearing and determination of the cause. The alternative writ was issued, and the circuit judge filed a return thereto admitting the allegations of the petition in so far as they alleged compliance with chapter 14765, but denying the validity and constitutionality of said statute and of the service attempted to be made thereunder, for substantially the same reasons as those set forth in the motions to quash which he had sustained.

Well prepared briefs have been filed by counsel, both for the petitioner, plaintiff in the law action, and the respondent circuit judge, and by amici curiae, discussing various questions, but we take it that there are but two meritorious questions involved in this case.

The first is whether the limitation by said statute of the right to this special kind of service upon nonresidents to suits brought by residents of the state of Florida is in violation of section 2 of article 4 of the Constitution of the United States, to the effect that 'the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.'

The second question is whether or not the act is unconstitutional under section 16 of article 3 of our State Constitution, which provides that each law shall embrace but one subject and matter properly connected therewith, which subject should be briefly expressed in the title; or, if the act is not entirely void by reason of noncompliance with said constitutional provision, whether the effect of the omission from the title of any reference to owners and chauffeurs is to confine the application of the provisions in the body of the act to the 'operators' of motor vehicles, thus making the act inoperative as to owners and chauffeurs.

While the defendants in the said law action might be precluded from raising the first question above referred to by reason of the familiar rule that the constitutionality of an act cannot be questioned by a party who is not himself denied some constitutional right or privilege, yet, inasmuch as this case comes before us in the shape of a mandamus proceeding against the circuit judge, and we would not be authorized to command the circuit judge to set aside his order and proceed with the case except upon the theory that the act is a valid and constitutional act, we think it appropriate for us to consider the question. The material portions of the act which Circuit Judge Lewis held to be unconstitutional reads as follows:

'Section 1. From and after the passage of this Act, any chauffeur, operator or owner of any motor vehicle, not licensed under the laws of the State of Florida providing for the registration and licensing of motor vehicles, who shall accept the privilege extended to nonresident chauffeurs, operators and owners by law of driving such a motor vehicle or of having the same driven or operated in the State of Florida, without a Florida registration or license, shall, by such acceptance and the operation of such motor vehicle within the State of Florida, make and constitute the Secretary of State of the State of Florida his, her, their or its agent for the acceptance of process in any Civil suit or proceeding by any resident of the State of Florida against such chauffeur, operator or the owner of such motor vehicle arising out of or by reason of any accident or collision occurring within the State of Florida in which a motor vehicle operated by such chauffeur, operator or such owner is involved; and the acceptance of the said privilege or the operation of said motor vehicle shall be a signification of his, her, their or its agreement that any such process against him, her, them or it which is so served shall be of the same legal force and validity as if served upon him, her, them or it personally.' (Italics supplied.)

It is evident that from the record and the briefs the learned circuit judge held the act unconstitutional because of the fact that it restricts the right of this kind of service to actions brought by residents of the state of Florida, thereby withholding it from residents of any other state.

While there are some older cases which would tend to sustain the position taken by the circuit judge, and also by the defendants in the motion to quash the service, there are some federal cases later in point of time, and more closely analogous in point of fact than those cited in behalf of respondent, which we think are conclusive of the statute's validity in this respect. From two of these cases we will quote portions of the opinions. One of these cases is by the Supreme Court of the United States, decided in May, 1929, and the other is a decision by the United States District Court for the District of New Jersey, decided in March, 1930.

The case of Douglas v. New York, N.H. & H. R. Co., 279 U.S. 377, 49 S.Ct. 355, 73 L.Ed. 747, was a suit under the Federal Employers' Liability Act (45 USCA § 51 et seq.) for personal injuries. The injuries were inflicted in Connecticut. The plaintiff was a citizen and resident of Connecticut, and the defendant a ...