Williams v. Capital Transit Co.

• Decision Date: 24 June 1954
• Docket Number: No. 11715,11953.,11715
• Citation: 94 US App. DC 221,215 F.2d 487
• Parties: WILLIAMS v. CAPITAL TRANSIT CO. WILLIAMS v. DOUGLAS.
• Court: U.S. Court of Appeals — District of Columbia Circuit

94 US App. DC 221, 215 F.2d 487 (1954)

WILLIAMS v. CAPITAL TRANSIT CO.

WILLIAMS v. DOUGLAS.

Nos. 11715, 11953.

United States Court of Appeals District of Columbia Circuit.

Argued March 22, 1954.

Decided June 24, 1954.

Mr. Joseph J. Malloy, Washington, D. C., for appellant.

Messrs. John P. Arness and John J. Sirica, Washington, D. C., for appellee in No. 11715.

Mr. Richard W. Galiher, Washington, D. C., with whom Mr. William E. Stewart, Jr., Washington, D. C., was on the brief, for appellee in No. 11953.

Before BAZELON, WASHINGTON and DANAHER, Circuit Judges.

DANAHER, Circuit Judge.

Appellant, Ada E. Williams, (plaintiff) was a passenger on a streetcar owned and operated by Capital Transit Company (Transit) when, on May 29, 1947, the streetcar collided with an automobile owned and operated by one Henderson B. Douglas (Douglas). Claiming to have suffered personal injuries as a result of the collision, plaintiff on December 31, 1949, filed this action against Transit and Douglas. Transit promptly filed its answer, and a month or so later, plaintiff attempted to serve process upon Douglas. Douglas failed to appear, and on June 28, 1950, a default was entered against him on plaintiff's application.

At the conclusion of the plaintiff's case in chief, Transit's motion for a directed verdict was denied. At the conclusion of the whole case Transit renewed its motion for a directed verdict which was denied. The jury reported disagreement as to the negligence of Transit and advised the court that it had not even reached for consideration the case against Douglas. The trial judge thereupon discharged the jury as to the case against Transit but returned it for consideration of the possible damages to be assessed against Douglas. A verdict was shortly returned against the defaulting Douglas.

Thereafter Transit filed its motion for judgment in accordance with its motion for a directed verdict, which was granted, and plaintiff appealed. (No. 11715). Some three months later the defendant Douglas "appearing specially" and for the first time, moved to set aside the judgment and the default against him and to quash service of process. The trial judge granted the Douglas motion, and plaintiff appealed. (No. 11953). The two appeals have been considered together. We will first take up the issue raised by plaintiff's appeal from the Douglas order.

I

The trial judge granted the motion in the case against Douglas upon affidavits and after hearing testimony and oral argument. In his supporting affidavit Douglas set forth that he resided at 311 Madison Street, N.W., Washington, on May 27, 1947, when the collision occurred, but that he separated from his wife in September 1947 and took up residence with his mother at 3601 Connecticut Avenue, and never thereafter resided at 311 Madison Street, N.W. He had not seen his wife since their separation, his work took him in 1948 to Utah, and by January 1950 he had become a permanent resident of Salt Lake City. He there obtained a divorce from his wife, Jane Douglas, and there, after a remarriage, he has made his permanent home. His affidavit further showed that he had never been served with process, never knew this action had been commenced and that he first learned on April 8, 1953 that a judgment had been rendered against him.

The deputy marshal's affidavit disclosed that he "personally served a copy of the summons and complaint on Mrs. Jane Douglas, wife of defendant Henderson B. Douglas on February 18, 1950 as directed by attorney for plaintiff under Rule 4 at premises 311 Madison Street, N.W., Washington, D. C."

Plaintiff relies upon Rule 4(d) (1), Federal Rules of Civil Procedure, 28 U.S.C.A., which authorizes service by leaving a copy of the summons and complaint at a defendant's usual place of abode with some person of suitable age and discretion residing therein. Of course, if the defendant did not in fact reside at 311 Madison Street, N.W. after September 1947, it was not his "usual place of abode" even if his wife, from whom he was separated, still resided there. The plaintiff insists that because the motion by Douglas was not filed until some three years after the purported service, it was not "timely." But the filing of the motion here was timely.¹

We approve the trial court's ruling. Civil Procedure Rule 4(d) (1) should be liberally construed, Rovinski v. Rowe, 6 Cir., 1942, 131 F.2d 687, 689. However service not completed at the defendant's usual place of abode is ineffective. First Nat. Bank & Trust Co. of Tulsa v. Ingerton, 10 Cir., 1953, 207 F.2d 793; Berryhill v. Sepp, 1909, 106 Minn. 458, 119 N.W. 404, 21 L.R.A.,N.S., 344. If in fact there were no service, the proceedings as to Douglas were void from the very outset. Earle v. McVeigh, 1875, 91 U.S. 503, 23 L.Ed. 398. No lapse of time can serve the plaintiff. The lack of jurisdiction of the court cannot be cured by the running of months or even years where the court had no jurisdiction to proceed against Douglas in the first place. Wise v. Herzog, 1940, 72 App. D.C. 335, 114 F.2d 486 and cases cited.

Plaintiff further here contends for the first time that she was entitled to a jury trial on the question as to Douglas' place of abode. Actually there was no issue of fact as to the place of abode at the time of purported service, February 18, 1950. The trial judge had before him several affidavits clearly establishing that Douglas had not lived with his wife since 1947. There was no proffer of proof to the contrary. The trial judge offered the plaintiff adequate opportunity to present such evidence as she might have to demonstrate that Douglas was in fact a resident at 311 Madison Street at the time of the attempted service. No such evidence was offered. Indeed, Jane Douglas from whom the defendant had been separated was present in court, and plaintiff cross-examined her as far as she chose to do so. The mother of the defendant Douglas was in court but in response to an invitation by the trial judge, plaintiff advised that she did not desire to make her a witness. Where there was no issue of fact, there was no question for the jury. Fletcher v. Evening Star Newspaper Co., 1940, 72 App.D.C. 303, 307, 114 F.2d 582, certiorari denied, 1941, 312 U.S. 694, 61 S.Ct. 732, 85 L.Ed. 1130.² The trial judge concluded that service upon Jane Douglas was not service upon the defendant, because 311 Madison Street was not his place of abode when the marshal left papers with her. Thus the District Court never acquired jurisdiction over the person of Douglas.

Some time in the fall of 1947 and before this action was brought, the plaintiff, then without counsel, conferred with a claims adjuster in Transit's office. At that conference a representative of the insurance carrier insuring Douglas was present. While the jury was considering its verdict, representatives of the insurance carrier were present in court and discussed possible settlement with plaintiff's counsel. Plaintiff argues from these facts that Douglas must have had notice of the action. These facts indicate only that the insurance carrier representatives had notice, not that the defendant did. And even if Douglas had had notice, there had been no service of process upon him. Where the District Court failed to acquire jurisdiction over the person of Douglas, it was without power to adjudicate rights asserted against him. Restatement, Conflict of Laws § 74, comment b. The judgment as to Douglas, accordingly, was void. McDonald v. Mabee, 1917, 243 U.S. 90, 37 S.Ct. 343, 61 L.Ed. 608.

However unfortunate that Douglas was not before the court, plaintiff has established no error in the District Court which can have the effect of restoring the void judgment. There was ample basis for the finding that there had been no service on Douglas and the trial judge had no recourse but to grant the Douglas motion. On the appeal as to Douglas, then, there is no error and the order setting aside the judgment as to him will be affirmed.

II

At the close of the plaintiff's case in chief the trial judge denied Transit's motion for directed verdict. His ruling was in accord with Capital Transit Co. v. Jackson, 1945, 80 U.S.App.D.C. 162, 164, 149 F.2d 839, 841, 161 A.L.R. 1110, certiorari denied 1945, 326 U.S. 762, 66 S.Ct. 143, 90 L.Ed. 459, where we said: ". . . In the District of Columbia the rule is that, when res ipsa is applicable, it permits an inference of negligence and thus establishes a prima facie case, or, in other words, makes a case to be decided by a jury. But it does not shift the burden of the proof. When all the evidence is in, the question for the jury still is whether the preponderance is with the plaintiff."³ (Emphasis supplied.) Transit at the close of the whole case renewed its motion for directed verdict which was denied without prejudice.

After considering the case many hours the jury advised the trial judge that it was "deadlocked" on the issue as to the negligence of Transit, and was thereupon discharged. As permitted by Rule 50(b), Federal Rules of Civil Procedure, Transit thereafter filed a motion for judgment in accordance with its motions for directed verdict which was granted. Plaintiff insists that the facts raised a typical jury question and that instead of granting defendant's motion, the trial judge should have ordered a new trial. In considering the problem thus raised, the evidence must be considered in the light most favorable to the plaintiff. Peigh v. Baltimore & O. R. Co., 1953, 92 U.S.App.D.C. 198, 204 F.2d 391.

Testimony disclosed that about 5:30 p. m. on May 29, 1947 a Transit street-car, southbound, stopped at a loading platform located on the west side of Seventh Street, just north of its intersection with H Street, to discharge and receive passengers. The plaintiff boarded the streetcar, and joined others who were standing in the aisle. Just before the streetcar was set in motion, a Capital Transit bus traveling eastward on H Street,...