Trailer Exp., Inc. v. Gammill, 52168

• Decision Date: 30 September 1981
• Docket Number: No. 52168,52168
• Parties: TRAILER EXPRESS, INC. and Jack M. Clements v. Nellie M. GAMMILL.
• Court: Mississippi Supreme Court

Page 1292

403 So.2d 1292

TRAILER EXPRESS, INC. and Jack M. Clements v. Nellie M. GAMMILL.

No. 52168.

Supreme Court of Mississippi.

Sept. 30, 1981.

Cary E. Bufkin, Shell, Buford, Bufkin, Callicutt & Perry, Jackson, for appellants.

William H. Liston, Liston, Crull & Gibson, Winona, for appellee.

ON PETITION FOR REHEARING

EN BANC:

Petition of Appellee, Nellie M. Gammill, for rehearing of the cause is sustained. The original opinion of the Court is hereby withdrawn and substituted therefor is the following opinion:

This case originated in the Circuit Court of Montgomery County. Appellee, Nellie M. Gammill, filed her suit against appellant, Trailer Express, Inc., requesting damages for personal injuries growing out of a motor vehicle collision that occurred on August 18, 1978. The declaration was filed on September 14, 1979, and summons was issued under Section 13-3-63, Mississippi Code Annotated (1972). This section is commonly known as "Non-Resident Motorist Statute" and On November 19, 1979, appellant, through its then attorney, filed a Motion to Quash Process and Set Aside the Default Judgment, with required affidavit. On the same date appellant filed a motion for an emergency hearing in vacation on its motion so that it would have sufficient time to appeal in the event of an adverse ruling before expiration of the appeal date from the original default judgment.

summons was properly served on the Secretary of State of Mississippi, as the statutory resident agent for non-resident motorists using the highways of this state. The summons was served on the Secretary of State on September 20, 1979, and was returnable to the next term of Circuit Court of Montgomery County that convened on the second Monday (the 8th) of October, 1979. The duly authorized agent of the appellant received the summons on September 25, 1979. No appearance was made in the cause by appellant and on October 19, 1979, toward the end of the twelve day term of court, appellee filed her motion for default judgment and for a writ of inquiry. This matter was heard on October 19, 1979, resulting in the circuit judge entering a final judgment in favor of appellee against appellant in the sum of $126,034.41.

A hearing was had before the lower court on November 23, 1979, on appellant's motion. During the lower court hearing the attorneys for appellee and appellant made certain stipulations, some of which shall be hereinafter discussed in the decision of this cause. Appellant's attorney had witnesses present to testify on behalf of its motion and also expressed a desire to call appellee as an adverse witness for the purpose of eliciting from her the matters that occurred at the time of the writ of inquiry and default judgment. The lower court was of the opinion that the objection to such testimony should be sustained; however, he allowed appellant to question appellee for the purpose of its appellate record. After the hearing on appellant's motion, the court entered its order denying the motion in its entirety.

On its appeal, appellant assigns a number of alleged errors. In our opinion two appeal points dispose of the case. These are:

I. Does Section 221(c) of the Interstate Commerce Act (49 USCA § 10330 (1980)) preempt the method of service of process of the nonresident corporation in this case and is thereby the exclusive method of service of process?

II. Does this Court have the authority to reverse and remand for a hearing on damages only? If so, should that be done here?

Appellant contends that as it had appointed a resident agent in the records of the Mississippi Public Service Commission pursuant to the above federal requirement, service on this agent was the exclusive method of service of summons on the non-resident appellant corporation and service of summons on the Secretary of State under Section 13-3-63 was void. The Federal Motor Carrier Act § 221(c) provides as follows:

(c) Every motor carrier (including any motor carrier operating within the United States in the course of engaging in transportation between places in a foreign country and a place in another foreign country) shall also file with the board of each State in which it operates and with the Interstate Commerce Commission a designation in writing of the name and post office address of a person in such State upon whom process issued by or under the authority of any court having jurisdiction on the subject matter may be served in any proceeding at law or equity brought against such carrier. Such designation may from time to time be changed by like writing similarly filed. In the event such carrier fails to file such designation, service may be made upon any agent of such motor carrier within such state.

It is our opinion that appellee had her choice as to the manner of serving appellant. Section 13-3-63 was enacted by the Legislature under the police power of this state, providing that by accepting the rights and privileges of using the highways of this In Gerut v. Poe, 11 F.R.D. 281 (N.D.Ill., 1951), the Court in discussing the preemption of a state process statute by federal statutes said the following:

state, a non-resident appoints the Secretary of State of Mississippi as his "true and lawful attorney upon whom may be served all lawful process in any action or proceeding against him...." (Emphasis added). The primary question is whether or not the Federal Motor Carrier Act and particularly the above section 221(c) void the police power application of Section 13-3-63. We do not find where an appellate court of last resort has passed on this precise question, but we do find identical questions in state lower courts and pronouncements of law in other appellate courts, including the Supreme Court of the United States, which indicate that the federal statute does not preempt a statute passed under Mississippi's police power regarding the use of its highways. Also federal and state courts have held that a federal statute does not preempt and void a state statute and prevent the state from exercising its police power unless the Congress in passing its act clearly manifested a mandate to do so. Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432 (1942); Allen-Bradley Local v. Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (1926); Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969 (1939); Southwestern Greyhound Lines v. Railroad Comm'n of Texas, 128 Tex. 560, 99 S.W.2d 263 (1936); Malone v. White Motor Corp., 435 U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443, on remand 8th Cir., 599 F.2d 283, aff'd 444 U.S. 911, 100 S.Ct. 223, 62 L.Ed.2d 166 (1978); Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978); Katharine Gibbs School (Inc.) v. F. T. C., 612 F.2d 658 (2d Cir.1979); Pharmaceutical Soc. of State of New York, Inc. v. Lefkowitz, 586 F.2d 953 (2d Cir.1978); Conference of Federal Sav. & Loan Ass'ns v. Stein, 604 F.2d 1256 (9th Cir.1979); Amalgamated Transit Union Div. 819 v. Byrne, 568 F.2d 1025 (3rd Cir.1977); Northern States Power Co. v. State of Minnesota, 447 F.2d 1143 (8th Cir.1971); and Gerut v. Poe, 11 F.R.D. 281 (N.D.Ill., 1951).

It is elementary that every state within its own sphere of action has exclusive rights to provide the method by which its court may obtain jurisdiction over the person or res. The only jurisdiction which Congress has attempted to exercise over this defendant is in regard to matters arising out of and in connection with its interstate transportation as a motor carrier. It is an entirely reasonable and necessary presumption, therefore, that, when Congress enacted the process statute, it only intended to provide means whereby the defendant could be made amenable to process in matters concerning which Congress had assumed jurisdiction under the Federal Constitution.

In a well-reasoned opinion, a New York lower court in Kuris v. Pepper Poultry Co., Inc., 174 Miss 801, 21 N.Y.S.2d 791 (Sup.Ct.1940), stated the following:

Plaintiffs urge that by virtue of the commerce clause of the Constitution (Article 1 § 8, cl. 3) Congress is vested with exclusive authority over matters of and pertaining to interstate commerce; that the enactment by Congress of the federal Motor Carrier Act is well within its constitutional power and that the enactment of the service of process provision, section 221, subdivision (c), ( § 321(c), 49 U.S.C.A.) thereof, is fully within the proper sphere of its action and therefore supersedes the state law on that subject ( § 229 Civil Practice Act); that it is hence controlling and exclusive and that the service made pursuant to section 221, subdivision (c) is valid; that jurisdiction has thus been acquired over the person of the defendant as a foreign corporation.

I am unable to accept this view. Firstly, it is held that so far as the federal Constitution is concerned, it is within the acknowledged power of every legislature to prescribe rules of procedure in courts of its own government. The establishment of courts of justice, within each state, according to its laws, and of the procedure in conjunction therewith, is the peculiar and exclusive province and duty of the state legislatures. 12 C.J. §§ 288 When the question is whether a federal Act overrides a state law, the entire scheme of the statute must be considered. 11 Amer. Juris., § 176. p. 873, Const.Law. Nowhere in the Act does it appear to be the intent and purpose of Congress, in the enactment of this law, to interfere with or usurp the power of the states relating to matters of state internal policy, concerning the jurisdiction of their courts or with the procedure prescribed by their legislatures for the acquisition of jurisdiction by their judicial tribunals over foreign corporations. The clear intent and purpose of Congress was to limit the Act solely to the regulation of commercial practices. (21 N.Y.S.2d 795-796).

291, p. 826; 15 C.J. § 178, p. 854; 16 C.J.S. Constitutional Law § 128,...