Suit v. Shailer

• Decision Date: 15 March 1937
• Docket Number: No. 6013.,6013.
• Citation: 18 F. Supp. 568
• Parties: SUIT v. SHAILER et al.
• Court: U.S. District Court — District of Maryland

18 F. Supp. 568

SUIT v. SHAILER et al.

No. 6013.

District Court, D. Maryland.

March 15, 1937.

George B. Woelfel and Emanuel Klawans, both of Annapolis, Md., and Moses Cohen, of Baltimore, Md., for plaintiff.

Robert France (Harrison & France), of Baltimore, Md., for defendants.

CHESNUT, District Judge.

In this case the defendant, Elizabeth S. Pickton, has filed a motion to quash the return of service of summons upon her which, treating her as a non-resident, was made by service on the Secretary of the State, together with affidavit of the plaintiff's attorney that proper notice had been given to her, all in accordance with article 56, § 190A, of Flack's 1935 Supplement to the Annotated Code of Maryland. The ground for the motion to quash is the allegation that she was not a non-resident of the State of Maryland within the meaning of the statute.

The plaintiff's suit is for personal injuries due to the alleged negligence of the defendant, Elizabeth S. Pickton, in driving a motor car belonging to her father, Clifford B. Shailer, the other defendant, who is a citizen and resident of the State of California. The accident and consequent injuries occurred in the City of Annapolis, Maryland, on May 3, 1934. The suit was originally instituted in the Circuit Court for Anne Arundel County on August 10, 1936, and, after service on the defendants as non-residents in the manner and form prescribed by article 56, § 190A, of Flack's Supp. to the Ann.Code of Maryland, the defendant, Clifford B. Shailer, appeared and pleaded to the declaration, but the defendant, Elizabeth S. Pickton, by her attorney, appeared only for the purpose of moving to quash the summons on her. Thereafter on petition of both defendants, the case was removed to this court on the ground of diverse citizenship.

At the hearing here on the motion to quash, testimony was submitted relating to Elizabeth S. Pickton's residence which in substance was as follows: She is the wife of a Lieutenant in the United States Navy and came to Maryland with him when he was assigned to duty at the Naval Academy, in Annapolis, about September 15, 1932, and she and her husband continuously thereafter actually resided, not in the United States Government grounds for the Naval Academy, but near thereto in the City of Annapolis, until May 25, 1935. During this time the defendant and her husband rented and occupied a dwelling house in Annapolis from September 15, 1932 to June 15, 1934, the lease containing the provision that if Lieut. Pickton were assigned to duty elsewhere than at Annapolis, the lease could be discontinued without further obligation for rent, this being known as the usual "Navy Clause." From June 15, 1934 until May 25, 1935, the defendant and her husband also resided in the City of Annapolis in an apartment house. They had telephone service at both residences, and on August 16, 1932, Lieut. Willis Henry Pickton registered his motor car in accordance with the applicable Maryland statutes in the office of the Commissioner of Motor Vehicles of the State and subsequently registered the same or successively owned cars during the years 1933, 34 and 35. In 1935 Lieut. Pickton was assigned to duty elsewhere than at Annapolis and he and his wife in May 1935 left Annapolis, and she, at the time of the institution of the suit and up to the present time so far as is known, is now actually residing in California. It does not appear that she ever registered or voted in Maryland. She is not a citizen of Maryland.

Upon these facts the plaintiff contends the service on the defendant, Elizabeth S. Pickton, as a non-resident was proper, but her counsel contend that it was improper because she had been an actual resident of the State of Maryland for about two years prior to the accident and continued to be such a resident for more than a year thereafter. The argument on behalf of the plaintiff is in substance that the defendant was, within the meaning of the statute, a non-resident both at the time of the accident in 1934 and at the time of the suit in 1935. It is clear enough that the defendant was a non-resident of Maryland at the time of bringing the suit. One question presented, therefore, is whether by the proper construction of the statute it is sufficient to justify the special form of constructive or substituted service if the defendant at the time of the suit is a non-resident of the State; and if this does not gratify the statute the further question is presented whether on the facts the defendant was a non-resident of the State within the meaning of the statute at the time of the accident. This requires some analysis of the statute itself.

The particular section 190A is in pari materia with the preceding section 190. Both are placed in article 56 of the Code Supp. (Licenses) under the one sub-heading entitled "Non-Resident Owners and Operators." Section 190 is a reciprocal statute for the exchange with other States of privileges for the use of Maryland roads by automobile owners and operators of other States. In substance it provides that non-resident owners and operators of motor vehicles who have complied with the laws of their respective States may use the Maryland roads without local registration or license, which, of course, is generally required of Maryland residents. But it is to be noted that the section provides that it is not applicable "to non-residents of this State who have temporary residences in this State for periods in excess of three months in any year"; and the further provision is made that "any resident of another State who shall come to this State and take up permanent residence herein shall be entitled to use the license and identification marker on his, or her motor vehicle for thirty days, and no more from the time when residence in this State first begins."

It is then provided by section 190A that "The acceptance by a non-resident individual, firm or corporation of the rights and privileges of using the roads and highways of Maryland, which rights and privileges are conferred by Section 190 or by any other law, as evidenced by his, their or its operation of a motor vehicle on any of the public highways within the limits of this State, shall be deemed equivalent to an appointment by such non-resident individual, firm or corporation of the Secretary of State, or his successor in office, to be his, their or its true and lawful attorney upon whom may be served all lawful processes in any action or proceeding instituted, filed or pending against him, them or it, growing out of any accident or collision in which said non-resident may be involved, while operating or causing to be operated, a motor vehicle on such public highway and said acceptance of the rights and privileges of using said highways for the operation of said motor vehicle by said non-resident individual, firm or corporation within this State, shall be a signification of his, their or its agreement that any such process against him, them or it which is so served shall be of the same legal force and validity (except as hereinafter provided) as if served on him, them or it personally." The section further provides in more detail for the manner of service and requires the filing of an affidavit by the plaintiff's attorney showing a receipt by the non-resident defendant of notice by registered mail of the suit together with a copy of the declaration, cause of action or titling. The defendant's return receipt must be filed with the affidavit. A former Act of the same general nature but not containing the latter requirement of actual notice given to the defendant, was held invalid by the Court of Appeals of Maryland in Grote v. Rogers, 158 Md. 685, 149 A. 547. The present statute has, however, been upheld in Wagner v. Scurlock, 166 Md. 284, 170 A. 539 and Employers' Liability Assur. Corp. v. Perkins, 169 Md. 269, 181 A. 436. See, also, Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091; Hendrick v. Maryland, 235 U.S. 610, 35 S.Ct. 140, 59 L.Ed. 385.

I am not able to take the view urged by counsel for the plaintiff that non-residence at the time of institution of the suit is sufficient to gratify the statute, if the defendant was in good faith a resident within the meaning of the statute at the time of the accident. As the statute is one of the State of Maryland, I should, of course, follow the construction put upon it by the Court of Appeals of this State, if there were such a decision. But counsel have not been able to refer me to any in this State, or elsewhere under similar statutes, on this particular point, and I know of none. Looking at the evident purpose of the two sections which are so closely related, it seems fairly clear that it was not the intention of the Maryland Legislature to authorize this special form of substituted service on defendants who were bona fide...