Opinion
No. 37900.
March 26, 1951.
1. Courts — jurisdiction — judgment — motor vehicles.
The Alabama nonresident motor vehicle statute which gives jurisdiction to the courts of that state of actions against nonresidents arising out of injuries by motor vehicles which occur on the highways in Alabama, applies as well where both the plaintiff and the defendant are nonresidents and are citizens of the same state; and judgments in such cases are entitled to full faith and credit in this state.
Headnote as approved by Hall, J.
APPEAL from the circuit court of Tishomingo County; RAYMOND T. JARVIS, Judge.
J.S. and E.W. Finch, for appellant.
To construe Title 7, Sec. 199 Code of Alabama of 1940 so as to permit a plaintiff to leave the county of his residence which is also the county of the residence of the defendant and go to a foreign state and bring a suit under a process statute that does not require personal service on such defendant would impute to the Legislature an unjust and unwise purpose. The Court will not so construe such a statute. Huber v. Freret, 138 Miss. 238, 103 So. 3; Gunter v. City of Jackson, 130 Miss. 637; 94 So. 844.
In construing a statute not only the language but the purpose and policy the Legislature had in view must be considered. Smith v. Chickasaw County, 156 Miss. 171, 125 So. 96; City of Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Pattison v. Clingan, 93 Miss. 310, 47 So. 503.
We insist that it was definitely the intention of the lawmakers in enacting Title 7, Sec. 199, Code of Alabama of 1940 to provide a remedy for its citizens, and not to enact a general process and venue statute for the benefit of those, such as plaintiffs in the cases at bar, who, for some reason of their own, want to leave their own jurisdiction and venue and go into another state to seek their remedies.
Even though Title 7, Sec. 199, Alabama Code of 1940 may be valid in other respects, we insist that if it should be held that this section permits residents of the same county of defendant of a foreign state to come back into Alabama and sue such a defendant on constructive process or process on the Secretary of State, without having obtained personal service of process on the foreign defendant, the said act is unconstitutional. It deprives one of his or her property without due process of law and thereby violates Article XIV, Sec. 1 of the Constitution of the United States and Article L, Sec. 6, Par. 8 of the Constitution of the State of Alabama of 1901, and Article III, Section 14 of the Constitution of the State of Mississippi. Saucier v. Life Casualty Ins. Co., 189 Miss. 693, 198 So. 625; Albritton v. Winona, 181 Miss. 75, 178 So. 799, 115 A.L.R. 1436, 303 U.S. 627, 82 L.Ed. 1088.
The provision of the Federal Constitution, that full faith and credit shall be given in each state to the public acts and records of others, does not apply to judgments rendered by the court of one state against a nonresident debtor in the absence of personal process. Louisville N.R. Co. v. Nash, 118 Ala. 477, 23 So. 825, 72 Am.St. Rep. 181, 41 L.R.A. 331.
Ely B. Mitchell, for appellee.
This nonresident process statute has been construed to apply to citizens and nonresidents alike.
This motor vehicle process statute has been construed by many courts, holding that it applies to citizens of the state and nonresidents of the state alike, and a few of these decisions so construing the statute are found in the cases below: La Tourette v. McMaster, 248 U.S. 465, 63 L.Ed. 363; Wuchter v. Pizzurti, 276 U.S. 13-18, 48 S.Ct. 259-260, 72 L.Ed. 446, 57 A.L.R. 1230; State, ex rel. Cochran v. Lewis, (Fla.) 159 So. 792, 99 A.L.R. 123.
This statute has been construed to apply to nonresident plaintiffs as well as to nonresident defendants.
In the following cases the statute was held to apply to nonresident plaintiffs as well as to nonresident defendants: Hoagland v. Dolan, 259 Ky. 1, 81 S.W.2d 869, 125 A.L.R. 463; Malak v. Upton, 166 Msc. 817, 3rd N.Y.S. 2d 248, Note found in 125 A.L.R. 463; Peeples v. Ramspacher, 29 F. Supp. 632, 125 A.L.R. 463; Liebfried v. Rhodes, 18 N.J. Mis. R. 464, 12 A.2d 679, 138 A.L.R. 1470, Note.
In the following cases the statute has been construed to apply when both parties are nonresidents of the state. Mann v. Humphrey, 257 Ky. 647, 79 S.W.2d 17, 96 A.L.R. 584; Beach v. D.W. Purdue Co., Inc., 5 W.W. Harr (Del.) 285, 163 A. 265; Jones v. Pebler (Ill.) 125 A.L.R. 464; State ex rel. Rush v. Circuit Court of Dane County, 209 Wis. 246, 244 N.W. 766; State ex rel. Gallagher v. District Court, 114 P.2d 1047, 138 A.L.R. 1470; Welsh v. Ruopp, 228 Iowa 70, 289 N.W. 760; Alberts v. Alberts, 217 N.C. 443, 8 S.E.2d 523.
The courts have construed this statute where the parties are nonresidents of the state and live in the same state, same county, same town, and same home.
Counsel for appellant lays great stress on the construction of these statutes with reference to the convenience to the parties, and says that since they reside in the same county, in the same state, they have no legal right to go over into Alabama and bring a suit against the defendant over there under this statute.
In the case of Alberts v. Alberts, 217 N.C. 443, 8 S.E.2d 523, the wife sued her husband. They resided in Massachusetts, living in the same household, both having been there before and after the accident. The Court held that she could obtain substituted service upon her husband in an action brought against him in North Carolina for injuries she sustained while riding in an automobile driven by him in North Carolina while they were traveling through that state en route to Florida. This case not only holds that they can live in the same county, same state, same town but sleep in the same bed and, under the statute, the wife has a legal right to bring a suit against the husband for his negligence for an accident that happened in North Carolina, although they were living in Massachusetts at the time of the accident and since that time.
The courts of the states of Delaware, Kentucky, Montana, and many others have construed these statutes to include nonresident parties where both parties lived in the same state and brought the suit in a state different from the one they lived in and where the accident occurred. Beach v. D.W. Pardue Co., Inc., 5 W. Harr (Del.) 285, 163 A. 265; Hoagland v. Dolan, 259 Ky. 1, 81 S.W.2d 869, 15 N.C.C.A. 711 Note; State ex rel. Rush v. Circuit Court of Dane County, 209 Wis. 246, 244 N.W. 766.
The Supreme Court of the United States has settled the issue in the case at bar in H.W. Hess v. Leo Pawloski, 71 L.Ed. 1091, the syllabus of which reads as follows: "A state statute declaring that the use of its highways by nonresident operators of motor vehicles is the equivalent of the appointment by such nonresident of the state registrar as agent upon whom process may be served for starting proceedings against him growing out of collision or accident in which he is involved on a highway, and requiring that he shall actually receive and receipt for notice of the service and a copy of the process, while allowing for continuances to afford a reasonable time and opportunity for defense, is not a denial of due process of law under the 14th Amendment to the Federal Constitution, but is a valid exercise of the police power.
Shuford Godwin was driving his automobile on a public highway in Colbert County, Alabama, when it collided with an automobile operated by Edward F. Burns. Brainard W. Johnson was a guest in the car with Godwin. All of these parties were and still are residents of Tishomingo County, Mississippi. Godwin brought suit against Burns in the circuit court of Colbert County, Alabama, and obtained service of process against appellant in strict accordance with the Alabama Nonresident Motorist Statute, Title 7, Section 199, Code of Alabama of 1940, which is quite similar to our statute on the same subject, — Section 9363, Mississippi Code of 1942. The method of service and the fact of receipt by appellant of copy of the complaint and summons are admitted by him. Appellant did not contest the suit in Alabama and a judgment was entered against him and in favor of appellee in the amount of $855.00.
Appellee subsequently brought suit against appellant in the circuit court of Tishomingo County, Mississippi, upon a duly authenticated copy of the Alabama judgment. Appellant filed several special pleas challenging the validity of the Alabama judgment upon the ground that the Alabama Court had neither venue nor jurisdiction over the cause of action or the person of appellant for the reason that the plaintiff and the defendant in the Alabama court were both actual residents and citizens of Tishomingo County, Mississippi, and that the sole purpose of the Alabama statute was only to give to citizens of that state access to its courts for redress for their injuries and damages sustained as a result of the negligence of nonresident motorists using the highways of that state. The case was tried by agreement of the parties by the circuit judge without the aid of a jury and he held contrary to appellant's contentions and entered judgment in this state upon the Alabama judgment. Hence this appeal.
The Alabama statute provides, in part: "The operation by a nonresident of a motor vehicle on a public highway in this state, or the operation on a public highway in this state of a motor vehicle owned by any nonresident and being operated by such nonresident, or his, their or its agent, shall be deemed equivalent to an appointment by such nonresident of the secretary of state of the State of Alabama, or his successor in office, to be such nonresident's true and lawful agent or attorney upon whom may be served the summons and complaint in any action against such nonresident growing out of any accident or collision in which such nonresident may be involved while operating a motor vehicle on such public highway; or in which such motor vehicle may be involved while being operated on such public highway within the State of Alabama; and such operation shall be deemed a signification of such nonresident's agreement and equivalent to an appointment by such nonresident of the secretary of state of the State of Alabama, or his successor in office, to be such nonresident's true and lawful agent or attorney upon whom may be served all lawful process in any action or proceedings against such nonresident growing out of any accident or collision in which such nonresident may be involved while operating a motor vehicle on such public highway, or in which such motor vehicle may be involved while being operated on such public highway within the State of Alabama, so that any such summons and complaint against such nonresident which is so served shall be of the same legal force and effect as if personally served within the State of Alabama." The statute then makes detailed provision for service of copies of the summons and complaint upon the Secretary of State of Alabama and for the mailing by him of a copy of each to the defendant by registered mail and of filing defendant's return receipt and a certificate of service in the court where the action is pending.
The constitutionality of such statutes has been so universally upheld by the courts of this country that the matter is no longer open to question. See annotations in 35 A.L.R. 951, 57 A.L.R. 1239, and 99 A.L.R. 130.
Appellant's argument narrows down to the contention that it was the intention of the Alabama legislature to provide a remedy for its citizens only and that it was never intended that the statute should open the Alabama courts to a nonresident plaintiff in his suit against a nonresident defendant, and particularly where both of such nonresidents are citizens of the same state. The statute, however, is not limited to affording relief only to citizens of Alabama. It says that the use of the Alabama highways by a nonresident motorist is equivalent to the appointment of the Secretary of State of the State of Alabama as his agent upon whom summons and complaint may be served "in any action against such nonresident growing out of any accident or collision in which such nonresident may be involved while operating a motor vehicle on such public highway". Such a provision has uniformly been held to authorize the filing of suit by a nonresident plaintiff against a nonresident defendant, and the only contrary holding is when the statute specifically limits the filing of suit to a plaintiff who is a resident of the state where the accident occurred. See exhaustive annotations in 96 A.L.R. 596, 125 A.L.R. 463, and 138 A.L.R. 1470. It is readily apparent that the locus of the accident is the place where in most instances the witnesses thereto are available and subject to process and is, consequently, the most convenient forum for the trial of the cause of action arising therefrom. Appellant cites no authority, nor have we been able to find any, where there is any distinction made as to jurisdiction of the suit in cases where plaintiff and the defendant are nonresident citizens of different states and those where they are nonresident citizens of the same state. There are, however, at least four cases where it seemed to make no difference that both plaintiff and defendant were nonresidents and citizens of the same state.
In Alberts v. Alberts, 217 N.C. 443, 8 S.E.2d 523, both plaintiff and defendant were citizens of Massachusetts, the cause of action accrued in North Carolina, and the court in the latter state was held to have jurisdiction of the case.
In Beach v. D.W. Perdue Co., 5 W.W. Harr., Del., 285, 163 A. 265, both plaintiff and defendant were citizens of Maryland, the cause of action accrued in Delaware, and the court in the latter state was held to have jurisdiction of the case.
In Hoagland v. Dolan, 259 Ky. 1, 81 S.W.2d 869, both plaintiff and defendant were citizens of Ohio, the cause of action accrued in Kentucky, and the court in the latter state was held to have jurisdiction of the case.
In State ex rel. Rush v. Circuit Court for Dane County, 209 Wis. 246, 244 N.W. 766, both plaintiff and defendant were citizens of Illinois, the cause of action accrued in Wisconsin, and the court in the latter state was held to have jurisdiction of the case.
In view of the foregoing authorities we are of the opinion that the Alabama court had jurisdiction of both the person of appellant and the subject matter of the suit and that its judgment is entitled to full faith and credit in this state, and the judgment of the lower court is accordingly affirmed.
Affirmed.