State ex rel. Gallagher v. District Court of Sixth Judicial Dist. in and for Gallatin County

• Decision Date: 24 June 1941
• Docket Number: 8223,8226.
• Citation: 114 P.2d 1047,112 Mont. 253
• Parties: STATE ex rel. GALLAGHER et al. v. DISTRICT COURT OF SIXTH JUDICIAL DIST. IN AND FOR GALLATIN COUNTY et al.
• Court: Montana Supreme Court

114 P.2d 1047

112 Mont. 253

STATE ex rel. GALLAGHER et al. v. DISTRICT COURT OF SIXTH JUDICIAL DIST. IN AND FOR GALLATIN COUNTY et al.

Nos. 8223, 8226.

Supreme Court of Montana

June 24, 1941

Proceedings by the State of Montana, on the relation of E. H. Gallagher individually, and carrying on business under the trade and assumed name of Smith Oldsmobile Company, for writs of supervisory control or other appropriate writs to annul orders of the District Court of the Sixth Judicial District in and for the County of Gallatin, W. C. Husband, Judge of the Fourteenth Judicial District, Judge Presiding, denying relators' motions to quash service of summons on them in four damage actions.

Writs denied.

MORRIS J., dissenting.

Lewis & Stotesbury, of Bozeman, for respondents.

JOHNSON Chief Justice.

By these four petitions for writ of supervisory control or other appropriate writ, the relators seek the annulment of district court orders denying their motions to quash the service of summons upon them in four damage actions. These four petitions, like the four motions in the district court to quash service, have been consolidated.

On the 7th of November, 1940, an automobile which had left Bremerton, Washington, some time on the preceding day, was wrecked four miles west of Bozeman. There were six persons in the car, some of whom were taken to the Bozeman hospital and four of whom have filed the damage actions in question. In the car were found some Illinois license plates, but how many of them does not appear from the record.

The complaints are virtually identical and each alleges that at the times in question the defendants, relators here, were engaged in the business of buying, selling and trading in autos at Bremerton, Washington; that plaintiff was in defendants' employ and with five other employees was hired to drive a used Mercury automobile from Bremerton Washington, to Chicago, Illinois, upon defendants' business; that it was defendants' duty to furnish a safe automobile, but by their negligence they furnished and suffered to be used by plaintiff an automobile which they knew to be unsafe and dangerous, in that the brakes were improperly adjusted and the exhaust system defective; that they failed to warn plaintiff of the dangerous conditions and of the precautions to be used, and that while one of plaintiff's fellow employees was driving with due care the poisonous gas from the exhaust, by reason of the defects, leaked into the closed body of the car, rendered partly unconscious the occupants, including the driver, by reason of which the car while so driven and operated by the driver, in defendants' employ, swerved off the road; that the driver could not and did not stop it, and plaintiff was severely injured. The only essential difference is that in one of the complaints it is alleged that the plaintiff was driving at the time of the accident.

Service was had upon the Secretary of State as attorney for the defendants under the provisions of Chapter 10, Laws of 1937, and the motions to quash the service were based upon four grounds, only two of which are urged in the petitions here, namely:

"(1) Whether, under the provisions of said Chapter 10 of the Laws of the Twenty-fifth Legislative Assembly of 1937, the service of summons is valid, and conferred jurisdiction over the persons of the relators, in view of the undisputed evidence that at the time of the accident alleged in the complaint the automobile involved in said accident was owned and operated by Ralph D. Wilson, and was not operated by relators, or either of them, by themselves or their agent; and

(2) Whether the provisions of said Chapter 10 of the Laws of the Twenty-fifth Legislative Assembly of the State of Montana of 1937 permit service of summons upon a nonresident defendant in a case where both plaintiff and defendant are nonresidents of the State of Montana, or whether the said Act was intended solely for the benefit of resident plaintiffs against nonresident defendants."

The motions to quash were based upon the records and files and "upon affidavits and oral evidence, if any, to be presented at the hearing." The defendants introduced as evidence the oral testimony of Wilson, one of the persons in the car at the time of the accident; a conditional sale contract by which immediately before leaving Bremerton with the other five men Wilson bought the car from defendants for $850, payable $250 down and the balance over a term of twenty-four months; the defendant's receipt for the down payment; and the affidavits of defendant Gallagher and of his office employee. The plaintiffs in the damage actions introduced as their evidence the affidavits of F. L. Morris, credit manager of the Bozeman hospital, L. E. Westlake, sheriff of Gallatin county, and R. E. Jones, a Montana highway patrolman. The defendants filed in rebuttal affidavits of Wilson and relator Gallagher.

The motions to quash having been denied, these applications were filed. In their returns to the alternative writs the respondents raise the contention that the defendants waived their special appearances and made general appearances by several acts, such as attacking the court's jurisdiction over the cause of action and not merely its jurisdiction over the defendants personally, by requesting additional time of the trial court, and by having the evidence and proceedings on their motions certified as bills of exceptions for use in these proceedings. However, in view of our conclusions it will be unnecessary to consider these points.

The petitions are virtually identical; that in cause 8223 alleges that an action was filed against relators by George Doyle and summons issued and served upon the Secretary of State of the State of Montana as their attorney under the provisions of Chapter 10 of the Laws of 1937; that both Doyle and the relators were and are nonresidents of Montana and residents of the state of Washington. Annexed to the petitions as exhibits are the complaints and the record of the proceedings and testimony on the motions to quash.

No question is raised as to the validity of the statute in question, which has already been approved by this court ( State ex rel. Charette v. District Court, 107 Mont. 489, 86 P.2d 750, and State ex rel. Thompson v. District Court, 108 Mont. 362, 91 P.2d 422), or as to the due compliance with its provisions; the only questions being the two stated above. The first is a question of fact, which requires a summary of the evidence.

Wilson testified that he had not been employed since September 27, 1940; that on the morning of November 6, 1940, the day before the accident, he purchased the car in question from the relators under the conditional sale contract above mentioned, which, however, was not placed of record until November 9, 1940, two days after the accident. He testified in part as follows:

"Q. Going down to Salina, Kansas, weren't you? A. Yes. And Mr. Gallagher said he knew some people he wanted to ride with me and if I would go out of my way up to Chicago that they would buy some of the gas and help me drive. So I had a short time to get there and get back, so I figured that I would just drive day and night till I got over there; I would save time. And if they helped me with some gas that would help me out, too.

Q. And that was the occasion of their being with you on that trip? A. Yes." ***

"Q. As a matter of fact, you and these other boys were going down to Chicago to drive back some new Oldsmobiles for Smith-Gallagher, weren't you? A. I wasn't.

Q. Or Smith-Oldsmobile, or Gallagher? A. I wasn't. I don't know what they were going for, or where they were going when they got there, or what they was going to do, or anything about them.

Q. Did you talk over the purpose of this expedition with the men you have named, the two Doyles, Novak, Mulkey, Reed, or any of them? A. Did I what?

Q. Did you talk over the purpose of this trip? A. No; uh, uh.

Q. You never mentioned to them what the trip was for? A. Not what I was going for, because it was none of their business.

Q. And you did not know what they were going for, did you? A. No, I didn't care. They told me when I picked them up that they were going to Chicago, and I says, 'Well, that is out of my way a little bit, but if they want to help me drive and pay for some of the gas, I will go out of my way some.'

Q. Do you now say, on oath and in this court, that you and these other men were not hired by Smith Oldsmobile or Gallagher to go to Chicago and drive back certain new Oldsmobile cars? A. I say I wasn't. I didn't say nothing about them. I don't know what they were going to do.

Q. You claim you do not know their purpose at all? A. It was not my purpose to go there and bring back cars. I don't know what their purpose was. I was going to Kansas."

He testified further that there were some Illinois license plates in his car; that he stayed at the Bozeman hospital for a week and then went back to Bremerton; that he had left some money with Gallagher and didn't know whether it was $50 or $500, but upon being pressed said it was "around $300.00;" that after the accident he called Gallagher by long distance telephone because he had never seen two of the other men before and just knew two others of them by sight and "was wanting to know what to do with them." He paid for the meals, but denied that it was with Gallagher's money.

Wilson's testimony as to the purchase of the car was substantiated by the affidavits of the defendant Gallagher and of one of his employees at Bremerton, the first of which includes the statement that since making the conditional sale contract the defendant had had no right, title or interest in the car except as provided by its terms.

F. L Morris,...