Steele v. Dennis

• Decision Date: 20 July 1945
• Docket Number: 2454.,Civ. A. No. 2453
• Citation: 62 F. Supp. 73
• Parties: STEELE v. DENNIS et al. LEWIS v. SAME.
• Court: U.S. District Court — District of Maryland

62 F. Supp. 73

STEELE v. DENNIS et al.

LEWIS v. SAME.

Civ. A. Nos. 2453, 2454.

District Court, D. Maryland.

July 20, 1945.

Hilary W. Gans, of Baltimore, Md., and Robert E. Lynch, of Washington, D. C., for plaintiff.

Clater W. Smith, of Baltimore, Md., for defendant Robert V. Dennis.

Robert E. Coughlan Jr., of Baltimore, Md., for defendant Langenfelders.

CHESNUT, District Judge.

The above cases are suits for personal injuries growing out of a collision between two automobiles on a Maryland highway on October 23, 1944. In each case the defendant, Robert V. Dennis, has filed a motion to dismiss the suit against him on the ground that although he was personally served with process in Maryland, he is a non-resident of the State, being a citizen of the State of Arkansas and having a permanent residence at Little Rock in that State; and that while driving one of the automobiles on a Maryland road at the time of the accident, he was in Maryland only because he was a member of the United States Naval Air Force and was stationed temporarily at the U. S. Naval Air Station at Patuxent, Maryland, where he had been since September 1944.

The plaintiff in case No. 2453 is a citizen of the State of Kansas, and in case No. 2454 the plaintiff is a citizen of the State of California. It appears from the pleadings and statement of counsel at the hearing on the motions that the collision occurred while the defendant Dennis was driving a passenger automobile which collided with a parked truck owned by the defendants George and C. J. Langenfelder, who are citizens of the State of Maryland. The plaintiffs were passengers in the automobile driven by the defendant Dennis.

The motions to dismiss are based on 28 U.S.C.A. § 112, relating to federal venue, which provides that "No civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant."

In both instant cases, neither the plaintiff nor the defendant Dennis is an inhabitant of this Maryland district. As the jurisdiction of the court in these cases is based only on diverse citizenship, the section clearly is applicable and entitled the defendant Dennis to a dismissal of the suit against him unless he has expressly by his conduct or by implication of law, consented to the venue jurisdiction. Camp v. Gress, 250 U.S. 308, 39 S.Ct. 478, 63 L.Ed. 997. It has been held in many cases that this restriction on venue is only for the personal convenience of the defendant and may be waived by him either expressly or impliedly. Commercial Casualty Ins. Co. v. Consolidated Stone Co. 6 Cir., 278 U.S. 177, 179, 49 S.Ct. 98, 73 L.Ed. 252.

There is no contention that the defendant has expressly waived the point but counsel for the plaintiffs contend that by virtue of the applicable Maryland statute, Md.Ann. Code 1943 Supp. Art. 66½, § 106, there has been an implied waiver in law. The statute referred to is one of a now well-known class of state statutes which provides in effect that non-resident motorists by their use of Maryland highways, consent to be sued by a service of process upon the Secretary of State as their attorney for causes of action growing out of any accident or collision in which they may be involved while operating a motor vehicle on the State highway. The statute provides, subsection (a), that the process in any such suit may be served on the Secretary of State and "shall be sufficient service upon the said non-resident individual, firm or corporation, and have full force and effect in any court and before any Justice of the Peace or Trial Magistrate of this State." There are other procedural provisions with respect to the forwarding of the notice to the non-resident or service of copy of the papers upon him in another jurisdiction.

In the instant case the particular type of service authorized by the statute has not been resorted to because the defendant Dennis has been personally served in Maryland by the Marshal of the court; but the contention of counsel for the plaintiffs is that the voluntary use of the Maryland highways by the defendant evidences his consent to be sued in Maryland courts and likewise this federal court in Maryland.

The provision of section 112(a) is derived from the Acts of March 3, 1887 and August 13, 1888 which superseded the Act of March 3, 1875 which permitted suits not only against inhabitants, but also where the defendants were "found" in the district. In the recent Supreme Court case of Neirbo Co. v. Bethlehem Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R. 1437, it was said that the elimination by the act of 1887 of the alternative "found" provision had no proper bearing on the previously well-established principle that the defendant in a diverse citizenship case, could waive the statutory provision for his benefit and that the privilege to rely upon it might be lost by failure to assert it seasonably, by formal submission in a case, or by submission through conduct. Accordingly it was determined that in a suit by a nonresident against a foreign corporation the latter's compliance with a State statute requiring the appointment of a resident agent for service in suits in the State constituted a consent to be sued either in the State or federal courts of the State. The decision was largely based on Chief Justice Waites' opinion in Ex parte Schollenberger, 96 U.S. 369, 376, 24 L.Ed. 853, which arose under the earlier Act of 1875. In the latter case it was said: "It was insisted in argument that the statute confines the right of suit to the courts of the State; but we cannot so construe it. There is nothing to manifest such an intention; and the object of the legislature evidently was to relieve the citizens of Pennsylvania from the necessity of going outside of the State to secure judicial redress upon their contracts made with foreign insurance companies, it is...