Summary
In McGuire v. Parker (Dist. Ct. Mo., 1948), 78 F. Supp. 199, it was held that a person lending his car to minors was "operating" it within the meaning of a statute providing for service of summons on a nonresident operating a motor vehicle within the state.
Summary of this case from Schefke v. Superior CourtOpinion
Nos. 350-353.
May 21, 1948.
Morgan M. Moulder, of Camdenton, Mo., for plaintiffs.
Ragland, Otto, Potter Embry and Leon P. Embry, all of Jefferson City, Mo., for defendant.
Actions for death and injuries in automobile accident by Lonnie McGuire and Ethel McGuire, husband and wife, by Orie D. Cummins, by Jim Jones, a minor, by Oscar Jones, next friend, and by Rollo H. Shipman and Mildred Shipman, husband and wife, against Jack Parker. On defendant's motions to dismiss or in the alternative to quash service.
Motions overruled.
Similar motions have been filed in each of the above causes. It is the contention of the defendant in each case that he, being a non-resident of the State of Missouri, the process served upon him was not in accord with law, and even if consonant with the provisions of named statutes then said statutes are unconstitutional and void because violative of Section I of the Fourteenth Amendment to the Constitution of the United States.
The facts in each case are substantially the same. The defendant was the nonresident owner of an automobile brought into Missouri and used by him while sojourning in the state. It was described as a "1941 model Ford V-8 automobile." It is averred that, "* * * on the 7th day of November, 1947, while the defendant was in Camden County, Missouri, and in charge of the use, management and the operation of said automobile on the highways of this State, he, the defendant, then and there unlawfully, carelessly and negligently loaned and intrusted said Ford automobile" to John William Cummins and Earl Van McGuire, who were then 14 and 15 years of age respectively, "for their use in operating it and driving it on the public highways of this State."
Other minors were in the automobile at the time the driver lost control on a steep grade with the result that some of the occupants were killed and others seriously injured, according to the averments of the complaint.
Suits were filed and jurisdiction over the defendant was sought, perforce the provisions of an Act of the Missouri Legislature: "Motor Vehicles: Relating to civil actions against non-residents," Laws of Missouri 1941, pages 435, 438, incl., Mo. R.S.A. § 8410.1 et seq. Summonses were issued and served upon the Secretary of State or his Chief Clerk as provided in said Act, and the defendant was further notified as provided by said statute.
It is the contention of counsel for defendant that at the time of the accident and injury the defendant was not personally operating his said automobile nor was it being operated by an agent, and therefore defendant was not a "person" as defined by said statute and not in the contemplation of the law.
1. It is substantially charged in each of the complaints that, "the defendant negligently and carelessly loaned and intrusted his said Ford automobile" to John William Cummins and Earl Van McGuire, "when the defendant knew, or by the exercise of ordinary care should have known, that they and each of them were of immature age, and incompetent or incapable of properly and safely operating said automobile upon the public highways of this State." And, moreover, it was charged that the automobile was in a defective condition and out of repair, "so as to render its use and operation on the public highways dangerous * * *."
The averments of the complaints are adequate to show negligence on the part of the owner in the use of his automobile. It is alleged that he intrusted it or loaned it to boys, who, because of their youth and inexperience, were incompetent and incapable of operating it. If these averments be true, then the defendant was negligent in putting his automobile in incapable and incompetent hands.
2. In the case of Saunders v. Prue et al., 235 Mo. App. 1245, 151 S.W.2d 478, 482, the court held that there was a well-defined exception to the general rule of negligence "in intrusting a dangerous article to one whom he knows to be unfamiliar with its dangerous quality, uninstructed in its use, or incompetent to use due care." See also Turoff v. Burch, 60 App.D.C. 221, 50 F.2d 986, loc. cit. 987. This would be sufficient to charge the defendant with the misuse of his automobile while in the state.
3. Accepting the averments of the complaint as true for the purposes of these motions, the defendant, in placing an automobile in the hands of inexperienced boys, brought himself within the attractive nuisance or turn-table doctrine which obtains in this state, and thus again negligently used his automobile while sojourning in the state.
4. No authorities were cited by the defendant which indicate the constitutional invalidity of the statutes challenged. However, the defendant was not only served with process in the manner conformable to the statute, but the record shows that a notice of such service was served "upon the above named defendant Jack Parker, by delivering a true copy thereof, together with a copy of the original summons and plaintiffs' petition attached thereto, to the said Jack Parker, personally." This was done by a process server at Des Moines, Iowa. It would follow that the defendant cannot properly complain of failure of due process.
Since the court must presume the constitutional validity of the Act, it follows that the several motions to dismiss, or, in the alternative to quash service, should be overruled, and it will be so ordered.