Bertrand v. Wilds , 198 Tenn. 543 ( 1955 )

Tomlinson, Justice

(dissenting).

The road upon which this traffic accident occurred was within the premises belonging to the United States Veterans Administration; that is, the United States Government. The United States has exclusive jurisdiction of these premises and the roads therein. The State of Tennessee has no jurisdiction whatsoever over these premises or the roads therein.

Section 8671 of the Code Supplement provides that the privilege “hereby” granted nonresidents to operate motor vehicles on highways within the State, and such operation, shall he treated as an agreement upon the part of the nonresidents that service of process upon the Secretary of 'State with copy sent to him shall have the force of personal service upon such nonresident. Without regard to what the definition of a highway given by subsection 13 of Code Section 2696a is, Mr. Justice Prewitt and I are of the opinion that the State of Tennessee has no authority to require a nonresident to agree to anything as a condition precedent to the use of a road or highway over which the State of Tennessee has no jurisdiction whatsoever.

But aside from that, we think the provision in the aforesaid subsection 13 defining a highway as one, among other things, under the control of the Federal Government means highways in the State built with State and Federal funds and connected with the highways of other states and over which the jurisdiction of Tennessee in this State extends with reference to repairs, maintenance and the regulation of traffic thereon. That Code Section is carried in the Code under the title “Begulation of Motor and Other Vehicles”. Tennessee has no authority to regulate the driving of motor vehicles on roads over which it has no jurisdiction, in our opinion.

For the reasons stated Mr. Justice Prewitt and I feel compelled to record our dissent from the conclusion reached by the majority.

On Petition to Rehe-ar.

Mr. Chiee Justice Neil

delivered the opinion of the Court.

The defendants in error, who were also defendants in the trial court, have filed their petition to rehear complaining generally that the Court erred in construing Code Section 8671 so as to give the courts of this State jurisdiction over nonresident owners and operators of vehicles registered in a foreign State, and that in the instant case it was sufficient that process was served upon the Secretary of 'State pursuant to the provisions of the aforesaid Code Section. These questions were fully discussed in the original opinion.

Contention is further made that the Court erred in treating the plea in abatement to the declaration as a demurrer rather than accept as true the statement of the trial judge as to the facts attending the place of the accident i. e. that the accident ‘ ‘ did not happen upon a highway of the State of Tennessee, the driveways or roads within the hospital grounds not being open for general use of the traveling’ public. ’ ’

The foregoing statement, which we think is a legal conclusion, is admittedly based upon certain maps and pictures of the hospital grounds, but not made a part of the record. But conceding it to be a finding of fact there is no dispute as to the place of the accident, that is that it did not happen on a public highway.

The determinative issue is whether or not we gave the Code Section 8671 a fair and reasonable construction and in conformity with the intention of the Legislature. While the constitutionality of the statute depends upon its provision providing for due process as affecting the rights of a nonresident, it cannot be denied that it was enacted not for the benefit of nonresidents traveling within this State hut rather for the benefit of the residents of Tennessee.

We readily concede that the statute would he unconstitutional if there was no provision for proper notice upon the nonresident by service of process upon a designated State official, i. e. the Secretary of State. Wuchter v. Pizzutti, 276 U. S. 13, 48 S. Ct. 259, 72 L. Ed. 446; Kane v. State of New Jersey, 242 U. S. 160, 37 S. Ct. 30, 32, 61 L. Ed. 222. But our cases uniformly hold that the Code Section applicable to the instant case is a valid statute. Moreover our construction of it in the case at bar in no way affects its constitutionality. An examination of comparative legislation in all the states discloses a general intent to regulate travel upon the highways in a manner that is fair and just to everyone, both residents and nonresidents. Thus it was said by Mr. Justice Bran-déis in Kane v. State of New Jersey, supra, construing the Maryland statute, “It is not a discrimination against nonresidents, denying them equal protection of the law. On the contrary, it puts nonresident owners upon an equality with resident owners.” It was further said in the same opinion, construing and giving emphasis to the general purpose of these statutes, “The power of a state to regulate the use of motor vehicles on its highways has been recently considered by this court and broadly sustained.” (Emphasis supplied.) 242 U. S. 167, 168, 37 S. Ct. 31.

We concede the soundness of the following statement on petitioner’s brief:

“When not availing himself of the privilege to nse the highway the process of a conrt of Tennessee cannot rnn into another state and summons a party therein domiciled to respond to proceedings brought against him for a money judgment in Tennessee.

“Pennoyer v. Neff, 95 IT. S. 714, 24 L. Ed. 565.

“To prosecute a suit brought in the courts of Tennessee against a non resident there must be actual service upon him within the state, or upon someone authorized by him to accept service. ’ ’

But there is no escape from the conclusion under Code Section 8671 that there is an implied consent by the non-resident’s use of the highways of this State that in case of an accident involving the use of his automobile the person injured may have service of process upon the Secretary of State.

In Producers’ & Refiners’ Corp. v. Illinois Cent. R. Co., 168 Tenn. 1, 73 S. W. (2d) 174, 175, it was said:

“When a nonresident owner of an automobile places it in the control of an agent or servant and sends it into this state, he is making use of the privilege of operating it on the highways of the state, and is making such use of the highways as to render himself liable to the process defined in the statute. This is the literal and natural meaning of the language employed in the section of the Code above quoted.”

It is again urged upon us by the petitioner that the statute is not applicable because the accident was not upon any highway or driveway that was subject to State regulation but was upon private grounds, i. e. a Veterans Hospital. While construing the statute with a reasonable degree of strictness, the same being in derogation of the common law, we are not required to construe it so as to place an undue limitation upon its purpose. The petitioner’s contention brings ns face to face with the question of when, and under what circumstances, a nonresident owner and operator of an automobile becomes exempt, if ever, from State or municipal regulation of vehicular traffic. In other words, it is true that he may operate his automobile for hours on a public highway and be exempt from the provisions of this “substitute for service statute” the moment he enters a private driveway, or an area that is under control or supervision of Federal authorities'? We think not. There is no such conflict between State and Federal power in the regulation of public travel that a nonresident may claim exemption from the service of process upon the Secretary of State for an accident based upon a mere technical distinction between a public highway and a driveway upon private property.

It is our well-considered opinion that the statute applies to the operation of motor vehicles upon public highways by nonresidents and also to the operation of such vehicles on private property, as a necessary incident to public travel upon the streets and highways of this State. Paduchik v. Mikoff, 158 Ohio St. 533, 110 N. E. (2d) 562, construing the statute of Ohio, which is similar to ours, and Sipe v. Moyers, 353 Pa. 75, 44 A. (2d) 263, construing the Pennsylvania statute, which is also similar in all respects to our own statute.

In Paduchik v. Mikoff, supra, the defendant’s contention was identical with the defendant, petitioner in the instant case, that is, that the “substitution of service statute” was not applicable unless the accident happened on a public highway. The sole issue involved the jurisdiction of the local courts of Ohio over the person of a nonresident who was enjoying the privilege of using the state’s high-ways. In ruling upon this issue, it was held [158 Ohio St. 533, 110 N. E. (2d) 567].:

“Unquestionably, such jurisdiction extends to the operation of motor vehicles on the public highways of the state and, in the opinion of this court, it also extends to the operation of the motor vehicle operated on private property in private garages and on private parking lots as an incident to its operation on such highways.” (Emphasis supplied.)

It is true there are cases to the contrary, such as where the accident happened while operating a “combine harvester” in a wheat field in such a manner as to set fire to and destroy twenty-one (21), acres of wheat. Kelley v. Koetting, 164 Kan. 542, 190 P. (2d) 361, and other cases cited by the Ohio Court.

The living force of our statute, however, and similar statutes in other states, clearly serves the public interest. These statutes, reasonably adopted to remedy the evil of an ever increasing number of accidents arising from the operation of motor vehicles both on our highways and elsewhere, represent a constitutional exercise of the police power. Thus in Sipe v. Moyers, supra, it is said (quoting from the Ohio opinion) :

“ ‘The issue is whether a state may, in exercising its police power, subject nonresident motorists to extra-territoral service of process in an action arising out of an accident involving the motor vehicle of a nonresident brought into this state over the state highway, but where the cause of action arose off the highway on private property.

“ ‘ * * * To hold that state power in this regard could not constitutionally be exercised to reach beyond the highway itself and encompass within its scope instances where the nonresident, after having entered the state over state highways, proceeds onto private property and there causes injury to another, would create an artificial and unreasonable distinction.’ ”

Petition to rehear is denied.

TomliNsoN, Justice, dissenting from the original opinion, now concurs in the foregoing on the sole ground that the petition to rehear is a reargument of the case.