Walton v. Stephens

• Decision Date: 01 March 1954
• Docket Number: Civ. No. 329.
• Citation: 119 F. Supp. 1
• Court: U.S. District Court — Western District of Virginia
• Parties: WALTON v. STEPHENS.

119 F. Supp. 1

WALTON v. STEPHENS.

Civ. No. 329.

United States District Court, W. D. Virginia, at Abingdon.

March 1, 1954.

Samuel A. Kushner, Danville, Va., for plaintiff.

Joseph M. Winston, Jr., and Grasty Crews, II, Danville, Va., for defendant.

BARKSDALE, District Judge.

This action, instituted in the Corporation Court of the City of Danville, Va., was removed to this court upon the ground of diversity of citizenship. For his cause of action, plaintiff has alleged that on July 26, 1953, defendant's agent drove defendant's large truck and trailer into the service station in Danville at which plaintiff was employed and instructed him to put air in the tires of the trailer, but that, while in close proximity to one of the tires and preparing to attach the air valve thereto, the rim of the tire blew off, inflicting serious personal injuries upon the plaintiff. Plaintiff further alleges that the rim had been negligently attached to the tire, that the same rim had blown off on two other occasions, causing personal injury to others, and that defendant's negligence in not properly attaching the rim to the wheel and not warning the plaintiff of the danger, was the direct and proximate cause of plaintiff's injury. For his injuries, plaintiff demanded judgment in the sum of $20,000.

Prior to entering the service station, concededly, defendant's vehicle had been operated over the highways of this Commonwealth, and defendant, being a nonresident, service of process on him was had by serving the process on the Commissioner of the Division of Motor Vehicles of Virginia as statutory attorney of the defendant for the service of process, under the provisions of Section 867.1 et seq., of the Code of Virginia.

So far as is here pertinent, the provisions of Section 8-67.1 are as follows:

"The acceptance by a nonresident of the rights and privileges conferred by article 6 of chapter 3 of Title 46 as evidenced by his operation, either in person or by an agent or employee, of a motor vehicle, trailer or semitrailer hereunder, or the operation by a nonresident, either in person or by an agent or employee, of a motor vehicle, trailer or semitrailer on a highway in this State otherwise than under such article, shall be deemed equivalent to an appointment by such nonresident of the Commissioner of the Division of Motor Vehicles * * * to be the true and lawful attorney of such nonresident upon whom may be served all lawful process against and notice to such nonresident in any action or proceeding against him growing out of any accident or collision in which such nonresident or his agent or employee may be involved while operating a motor vehicle, trailer or semitrailer on such highway, and such acceptance or operation shall be a signification of his agreement that any such process against or notice to him which is so served shall be of the same legal force and validity as if served upon him personally in the county or corporation in which such accident or collision occurred or in which a resident defendant, if any, resides." (Italics mine.)

It is conceded that the prescribed procedure for such service was followed, but defendant has moved to dismiss this action upon the ground that plaintiff's cause of action did not arise out of any accident or collision upon a highway of this State within the meaning of the statute, and that therefore the attempted service of process was valid and of no effect.

As defined by Section 46-1(8), a highway is defined as follows:

"`Highway'. — Every way or place of whatever nature open to the use of the public for purposes of vehicular travel in this State, including the streets and alleys in towns and cities."

In Crouse v. Pugh, 188 Va. 156, 164, 49 S.E.2d 421, 426, 4 A.L.R.2d 1242, the Court said:

"This section needs no construction. Its meaning is perfectly plain, comprehensive and unambiguous. It does not limit the meaning of the word `highway' to a hard-surfaced or partly hard-surfaced way or to a dirt and gravel way. It does not confine a highway to the main-travelled portion of the way or to lanes specifically designated for vehicular traffic. No exception is made as to the shoulders or slopes of a way. The nature of the way or place is not determined by whether the way is improved or consists of dirt and gravel. The paving of a way does not make it a `highway.' The true test is whether the `way or place of whatever nature' is `open to the use of the public for purposes of vehicular travel.' We find nothing in the context of the Motor Vehicle Code which indicates a different meaning."

It would seem that no citation of authority is necessary for the conclusion that the premises of the service station were not a highway or any part thereof. The premises of the service station were open to the public upon invitation of the proprietor, which invitation he might terminate or limit at will. Obviously, the premises of the service station were not "open to the use of the public for purposes of vehicular travel."

Counsel for defendant contend that the accident which is the basis of this action was not an accident or collision in which the non-resident was "involved while operating" his motor vehicle, but rather that it was an accident which occurred in the course of the maintenance of the vehicle, and that therefore the accident here in controversy would not have come within the purview of the statute even if it had occurred while the vehicle was actually on a "highway". However, I do not find it necessary for a decision on the question here presented to consider this contention.

Defendant's main contention, and the one which I believe to be unquestionably sound, is that this action is not one "growing out of any accident or collision in which" a non-resident was "involved while operating a motor vehicle, * * * on such highway, * * *." (The "such highway" referring back to the phrase, "a highway of this State" in the early part of the section). Counsel have cited no decision of the Supreme Court of Appeals of Virginia, or any other Virginia court, on the question here presented, nor do I find any.

This statute came before me once before in the case of Warner v. Maddox, D.C., 68 F.Supp. 27, 29. There, an automobile operated by a citizen of Virginia collided with an automobile operated by a citizen of Connecticut, who was instantly killed as a result of the collision, and his passengers sustained personal injuries. The passengers instituted their actions in this District against both the Virginia operator and the personal representative of the deceased Connecticut operator, serving process upon the latter under the provisions of the statute here in controversy. The Connecticut personal representative moved to quash such...