State ex rel. Sullivan v. Cross

• Decision Date: 14 July 1958
• Docket Number: No. 46667,46667
• Citation: State ex rel. Sullivan v. Cross, 314 S.W.2d 889 (Mo. 1958)
• Parties: STATE of Missouri ex rel. Edith SULLIVAN, Administratrix of the Estate of Richard Sullivan, deceased, and Theresa Plog, Administratrix of the Estate of Lorenzo Plog, deceased, Relators, v. The Honorable Gerald CROSS, Judge of the Circuit Court of Andrew County, Missouri, Respondent.
• Court: Missouri Supreme Court

Page 889

314 S.W.2d 889

STATE of Missouri ex rel. Edith SULLIVAN, Administratrix of the Estate of Richard Sullivan, deceased, and Theresa Plog, Administratrix of the Estate of Lorenzo Plog deceased, Relators, v. The Honorable Gerald CROSS, Judge of the Circuit Court of Andrew County, Missouri, Respondent.

No. 46667.

Supreme Court of Missouri, En Banc.

July 14, 1958.

Deacy & Deacy, Thos. E. Deacy, Kansas City, Ewing & Beavers, Joe Beavers, Maryville, for relators.

John W. Newhart, Savannah, Solbert M. Wasserstrom, Kansas City, for respondent.

EAGER, Judge.

This is a proceeding in prohibition filed initially in this court. The preliminary rule was issued largely because of the decision in Brooks v. National Bank of Topeka, D.C.W.D.Mo., 152 F.Supp. 36. The facts may be briefly stated. One Charles R. Reed, a resident of Missouri, was killed in an automobile accident on Nov. 24, 1956, in Andrew County, Missouri; the occupants of the other car, which allegedly collided with Reeds's car, were Richard Sullivan, the driver, and Lorenzo Plog, the owner, both of whom were in fact residents of Douglas County, Nebraska. On Feb. 18, 1957, Gail Evelyn Reed, the widow of Charles R. Reed, filed suit in the Circuit Court of Andrew County against 'Theresa Plog, Administratrix of the Estate of Lorenzo Plog, deceased, and Edith Sullivan, Administratrix of the Estate of Richard Sullivan, deceased,' (so designated in the caption of the petition) for damages arising from the death of her husband; she alleged negligence in some detail, alleged that the Plog car bore a specified Nebraska license plate, but failed to allege, specifically, the deaths of Sullivan and Plog (who were killed in the accident), their respective residences, or the appointments of their legal representatives. Plaintiff prayed, however, for an order of service on defendants as nonresidents 'who were using the highways' of Missouri as provided in Secs. 506.200 and 506.210, RSMo 1949, V.A.M.S. as amended. Summonses were issued to 'Edith Sullivan, Administratrix' and 'Theresa Plog, Administratrix'; these, together with copies of the petition, were served upon the Chief Clerk of the Secretary of State and returns of that service were duly made. The office of the Secretary of State sent to each of the defendants, by registered mail and at the address furnished, her respective summons and a copy of the petition, together with a notice to each, advising of the institution of the suit and of the service and the date thereof. The notice to Theresa Plog erroneously described her as 'Administratrix of the Estate of Richare Sullivan, deceased.' Neither defendant has denied receiving the summons, the copy of petition or the notice. On July 8, 1957, the plaintiff filed an amended petition specifically alleging the residence of Sullivan and Plog, their deaths, and the appointment of their respective administratrices on Jan. 7, 1957. Copies of the amended petition were mailed to the attorneys who had, upon special appearances, filed motions to quash. Further service of process was supposedly had or attempted in Dec., 1957, after the issuance of our preliminary rule; we do not consider that, as it is no proper part of our record.

Both of the defendants (relators here), through counsel and on special appearances, filed motions to quash the returns of service or in the alternative to dismiss. The grounds therein stated are largely those contained in the 'Points' of their present brief and need not be enumerated here. On Nov. 12, 1957, these motions were overruled, and defendants were given time to plead. The petition for a writ of prohibition followed, relators urging that the Circuit Judge had and has no jurisdiction to proceed.

The first point made here by relators is that the original petition of Mrs. Reed stated no cause of action and alleged no grounds authorizing the issuance of process. That petition was somewhat inept, but it is perfectly obvious that no one has been misled and that the petition was, in the respects questioned, subject to amendment. Relators are not entitled to prohibition on this ground 'unless, under the admitted facts, petitioner cannot state a cause of action.' State ex rel. Reed v. Harris, Banc, 348 Mo. 426, 153 S.W.2d 834, 836, and cases there cited. Certainly the omission to allege the deaths, the residence, and the appointments of administratrices was thus subject to amendment. Relators also suggest, in their argument, that the summonses were insufficient and that the Plog notice was addressed to Theresa Plog as Administratrix of the Sullivan estate. Considering together the copies of the petition, the summonses, the notices, and the actual receipt of these by the proper parties, the inaccuracies were not such as to invalidate the summonses or the notice, or to deprive the court of jurisdiction, if it otherwise had jurisdiction.

The substantive point made (actually as two or more points, here considered jointly) is that Sec. 506.210, RSMo 1949, V.A.M.S., as amended in 1955 (Cum.Supp., 1957) is unconstitutional in so far as it purports to confer jurisdiction on Missouri courts over administrators or executors of the estates of nonresidents, because it violates the requirements of due process and the 'Privileges and Immunities' section of Art. 4, U.S. Constitution, fails to give full faith and credit to the statutes and judicial proceedings of the State of Nebraska (Sec. 1, Art. 4, U.S. Constitution), and is not sufficiently specific in its terms.

Section 506.210, RSMo 1949, V.A.M.S. (to which revision all statutory references will be made except as noted), as originally enacted in 1941, provided for the first time a basis of jurisdiction in suits against nonresident motorists; it made no reference to executors or administrators of the estates of nonresident motorists, nor did Sec. 506.240, the service section. However, Sec. 537.020, relating to the survival of personal injury and death actions, provided (par. 3) that if a nonresident who had negligently caused injury himself died, the probate court of the county where the casualty occurred should have 'power to appoint a representative of such deceased for the purpose of being sued and defending * * *.' (Emphasis ours.) In Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763, it was held that neither this statute nor Sec. 506.210 purported to authorize the appointment of a true personal representative of the assets of a nonresident decedent, or to subject such legal representative to suit; that such a cause of action could only survive against the legal representative; that Sec. 537.020 provided for no notice to a nonresident legal representative, whereas the requirements of due process required a notice 'reasonably calculated' to reach him and afford him an opportunity to appear and defend, if, in fact, he was to be subjected to the jurisdiction of our courts; also, that the notice must be one prescribed by statute, and not a mere gratuitous notice. Thus, Sec. 506.210 was held inapplicable to nonresident administrators or executors, and paragraph 3 of Sec. 537.020 was held to be violative of due process. The latter section was amended in 1955 by eliminating that paragraph (Laws 1955, p. 780). In the case of Crump v. Treadway, Mo., 276 S.W.2d 226, the court held that Sec. 537.020 did not purport to authorize the appointment of a true legal representative and that a cause of action for personal injuries would survive only against such a representative.

In 1955 Sec. 506.210 was amended to read as follows: '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, his executor, administrator or other legal representative shall be subject to the jurisdiction of the courts of this state in all civil actions and proceedings brought against him, his executor, administrator or other legal representative by either a resident or a nonresident plaintiff, for damages to person or property, including actions for death, growing or arising out of such use and operation; and (2) An appointment by such nonresident, his executor, administrator or other legal representative 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.' All wording therein referring to an 'executor, administrator or other legal representative' was new.

With this background we look to the general state of the law. All of the states have nonresident motorist statutes; and the courts now hold, without exception, that these statutes are valid and not violative of due process, as concerns the nonresident motorist himself (Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091; 18 A.L.R.2d 544, note) or his agent or bailee (Young v. Masci, 289 U.S. 253, 53 S.Ct. 599, 77 L.Ed. 1158). As the litigation multiplied, however, sundry cases arose in which the nonresident motorist himself had been killed or had died pending suit. The early statutes did not cover that contingency; and the courts very generally held that in such event suit might not be maintained (or revived) against the foreign executor or administrator of the nonresident. 53 A.L.R.2d 1164; 61 Harvard Law Review 355; 57 Yale Law Journal 647. The theory usually thus adopted was that the statutes proceeded upon a theory of agency (i. e., the nonresident had appointed an agent for service) and that the agency terminated at the motorist's death. Much doubt has been cast upon the argument concerning 'agency.' See 61 Harvard Law Review 355, and the cases hereinafter discussed.

Considering the anomalous practical effect of permitting suits against living nonresidents but not against...