Brown v. Cleveland Tractor Co.

I cannot concur in the opinion of Mr. Justice WEADOCK.

Defendant is an Ohio corporation, manufacturing and selling tractors. Charles H. Wilt was its service mechanic, employed by it to travel in several States and make needed repairs and adjustments on tractors. Wilt was under orders of the company but could travel by train or his own automobile at his pleasure and, when using his own car, he was allowed seven cents a mile as expense money.

The action is brought for damages resulting from a collision between Wilt's car, while driven by him on defendant's business, and plaintiff's car. Service was made on both Wilt and defendant under 1 Comp. Laws 1929, § 4790, and also on defendant through an alleged agent in Michigan, Marcus S. McNabb. No personal service of process was made within the State of Michigan on defendant, or on Wilt individually, or on Wilt as agent of defendant under 3 Comp. Laws 1929, § 14094. Defendant reviews denial of motion to set aside the service on it.

The title and relevant portion of section 4790 read:

"An act to provide for the service of process in civil actions upon nonresident operators or non-resident owners of motor vehicles operated upon the highways of this State under certain conditions.

"SECTION 1. From and after the effective date of this act, the operation by a nonresident of a motor vehicle upon a public highway of this State shall be deemed equivalent to an appointment by such nonresident of the secretary of State to be his true and lawful attorney, upon whom may be served the summons in any action against him, growing out of any accident or collision in which such nonresident may be involved while operating a motor vehicle on such a public highway. Such operation shall be deemed a signification of his agreement that any such summons against him which is so served shall have the same legal force and validity as if served on him personally within this State."

It is conceded that all the requirements of the statute for service were complied with. The question is whether defendant was "operating" Wilt's car at the time of the accident.

The statute is in derogation of common right, must be strictly construed, and cannot be extended by implication to include persons not coming within its terms. Day v. Bush,18 La. App. 682 (139 So. 42); Morrow v. Asher.55 Fed. (2d) 365.

The words "operation" and "operating" may mean many things. The other motor statutes do not aid us because they employ the words as meaning acts of the owner or of the driver, according to the context. However, neither by statute, 1 Comp. Laws 1929, §§ 4632(c), 4658(c), 4693(m), nor at common law, was defendant the owner of the Will car.

Nearly all the States have adopted acts for substituted service on nonresident motorists (82 A.L.R. 769), and, of course, the statutes differ. The quoted portion of our act is identical with the New York law so we may assume it was taken therefrom.

The question is not before us whether the statute would permit substituted service on a nonresident corporation conducting a bus or truck service or the like, operated under direct supervision and ordered routes (Bessan v. Public ServiceCo-ordinated Transport, 135 Misc. Rep. 368 [237 N.Y. Supp. 689]; Poti v. New England Road Machinery Co., 83 N.H. 232 [140 A. 587]); nor, indeed, on any nonresident corporation owner of a car driven by its servant (Bischoff v. Schnepp, 139 Misc Rep. 293 [249 N.Y. Supp. 49]).

In New York it is settled that a nonresident individual whose car is driven with his consent, but not by his servant, is not subject to the substituted service because the word "operate" signifies "a personal act in working the mechanism of the car."O'Tier v. Sell, 252 N.Y. 400 (169 N.E. 624); Jones v. Newman,135 Misc. Rep. 473 (239 N.Y. Supp. 265); Zurich, etc., Co. v.Brooklyn, etc., Corp., 137 Misc. Rep. 65 (241 N.Y. Supp. 465);Gesell v. Wells, 229 App. Div. 11 (240 N.Y. Supp. 628). And inWallace v. Smith, 238 App. Div. 599 (265 N.Y. Supp. 253), a case in point, it was held that a foreign corporation, not the owner of the car, is not subject to the statutory service where the car was driven by its agent who owned the car. The court said:

"The law permitting service by the means suggested may be proper in certain cases. If it is to be extended so that it will cover a case of this character, it may be subject to very great abuse. A person or corporation which is neither the owner nor operator of a car may be called to some distant State to defend a personal injury action on the allegation that some person operating a car in that State was doing so as the agent for such person or corporation. The statute was never intended for any such purpose."

In Josephson v. Siegel, 110 N.J. Law, 374 (165 A. 869), also in point, a similar ruling was made, and in Morrow v.Asher, supra, and in Day v. Bush, supra, it was held that an individual nonresident owner is not subject to the substituted service, although his car was being driven by his employee.

It is desirable that statutes for substituted service on motorists shall have uniformity of construction, as far as their language will permit, that people may cross State lines with knowledge of their liabilities and rights. The construction by other courts, in cases similar in fact or principle, is in accord with the language and purpose of our act. The substituted service on defendant was not authorized.

Was McNabb an agent of defendant or "representing such corporation in any capacity," 3 Comp. Laws 1929, § 14094, upon whom process could be served to bind defendant?

McNabb was a local dealer. He had a contract with defendant, called a "distributor's agreement." Under it he was given the right to purchase tractors and parts for resale in certain designated territory, became liable to pay for them, became the owner on payment, and sold them to his customers under such arrangement as he pleased. The contract was very similar to that in Barnes v. Maxwell Motor Sales Corp., 172 Ky. 409 (189 S.W. 444, Ann. Cas. 1917 E, 578), in which it was held the dealer was not an agent.

The only hint at agency is that, when trouble developed with a tractor and McNabb was notified, he informed defendant and the latter sent a service man to remedy the difficulty. The contract, however, required McNabb to service the tractors. Defendant agreed with him to fulfill warranties. McNabb established no legal relation between his customer and defendant. The record shows no agency.

Reversed, with costs.

McDONALD, C.J., and POTTER, SHARPE, NORTH, WREST, and BUTZEL, JJ., concurred with FEAD, J.