Warner v. Maddox

• Decision Date: 07 October 1946
• Docket Number: No. 174,177.,176,174
• Citation: 68 F. Supp. 27
• Parties: WARNER et al. v. MADDOX et al. CASEY v. SAME (two cases).
• Court: U.S. District Court — Western District of Virginia

68 F. Supp. 27

WARNER et al. v. MADDOX et al.

CASEY v. SAME (two cases).

Nos. 174, 176, 177.

District Court, W. D. Virginia, at Lynchburg.

October 7, 1946.

Douglas A. Robertson (of Williams Robertson & Sackett), of Lynchburg, Va., John A. Danaher, and A. K. Shipe, both of Washington, D. C., for Emma Gladys Warner and Marion Anita LaMay.

Stephen J. Rudd, of Brooklyn, N. Y., for Edward F. Casey and Dorothy M. Casey.

M. F. Trader and W. H. Jordan, both of Lynchburg, Va., for Irving J. LaMay, Administrator.

E. Marshall Frost (of Caskie, Frost & Watts), of Lynchburg, Va., for Henry Dorison Maddox and M. M. Maddox.

BARKSDALE, District Judge.

When a nonresident of Virginia is involved in an accident while operating a motor vehicle on a highway in this state, a Virginia statute, Virginia Code, § 2154(70) (i), provides for substituted service of process upon such nonresident in any action which may be brought against such nonresident for damages growing out of such accident. The pertinent provisions of this statute are as follows: "(i) The acceptance by a non-resident of the rights and privileges conferred by this section as evidenced by his operating, either in person or by an agent, or employee, a motor vehicle, trailer or semi-trailer hereunder, or the operation by a non-resident, either in person or by an agent, or employee of a motor vehicle, trailer or semi-trailer on a highway in this State otherwise than under this section, shall be deemed equivalent to an appointment by such non-resident of the director or his successors in office, to be his true and lawful attorney upon whom may be served all lawful process against and notice to such non-resident in any action or proceeding against him growing out of any accident or collision in which such non-resident or his agent or employee may be involved while operating a motor vehicle, trailer or semi-trailer on such highway, and said acceptance or operation shall be a signification of his agreement that an 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. Service of such process or notice shall be made by leaving a copy of the process or notice, together with a fee of three dollars, plus one dollar additional for each defendant over one to be thus served, in the hands of the director, or in his office in the city of Richmond, Virginia, and such service shall be sufficient upon the said non-resident, provided that notice of such service and a copy of the process or notice are forthwith sent by registered mail, with registered delivery receipt requested, by the director to the defendant, or defendants, and an affidavit of compliance herewith by the director, or some one designated by him for that purpose and having knowledge of such compliance, shall be filed with the declaration or notice of motion. * * *"

The constitutionality of this statute has been upheld by the Supreme Court of Appeals of Virginia. Carroll v. Hutchinson, 172 Va. 43, 200 S.E. 644.

The instant cases grow out of a collision which occurred in this District between an automobile operated by a citizen of this District of Virginia, and an automobile operated by a citizen of Connecticut, and as a result of the collision it is alleged that the Connecticut operator was instantly killed and the four passengers in his automobile sustained personal injuries. A personal representative of the deceased Connecticut operator has qualified in Connecticut, but not in Virginia. The instant cases are actions in which the Connecticut passengers have undertaken to sue in this court both...