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Dart Transit Co., Inc. v. Wiggins

OPINION FILED DECEMBER 22, 1953.

DART TRANSIT COMPANY, INC., APPELLANT,

v.

WADE W. WIGGINS AND GEORGE E. HENSEL, APPELLEES.



Appeal by plaintiff from the Superior Court of Cook county; the Hon. HAROLD G. WARD, Judge, presiding. Heard in the second division of this court for the first district at the April term, 1953. Judgment order reversed and cause remanded with directions. Opinion filed December 22, 1953. Rehearing denied February 5, 1954. Released for publication February 19, 1954.

MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied February 5, 1954.

Plaintiff, Dart Transit Company, Inc., a corporation, brought suit in the superior court of Cook county against Wade W. Wiggins and George E. Hensel for indemnification and reimbursement of moneys paid by plaintiff to certain third parties. These third persons were injured as a result of a collision involving a tractor-trailer unit owned by defendant Wade W. Wiggins and being driven by his employee, George E. Hensel, and being then and there under lease to plaintiff and operated under interstate commerce permit. The accident happened November 24, 1951 near the city limits of Mt. Prospect, Cook county, Illinois, and as a result of the accident plaintiff, the lessee of the tractor trailer, was compelled to make payments totaling $15,000 to the injured persons in settlement of their claims. Plaintiff thereafter brought suit against the lessor-owner, Wade W. Wiggins, and the lessor's agent and driver, George E. Hensel, for indemnification and reimbursement of the sums paid to the injured parties (Count I), and against Wade W. Wiggins for reimbursement under the terms of the trip lease agreement under which the movement was being operated (Count II). Service was had on both defendants under the Illinois non-resident service statute, section 20a of the Motor Vehicles Act (Ill. Rev. Stat. 1951, chap. 95 1/2, par. 23 [Jones Ill. Stats. Ann. 85.023]), inasmuch as both defendants are residents of the State of Florida. Both defendants filed a special and limited appearance and motion to quash summons. From an order quashing summonses, plaintiff appeals.

The ground upon which the ruling of the court below seems to have been based was that the cause of action stated in the complaint, not arising ex delicto but arising out of contractual obligations, did not therefore grow out of the use and operation of the motor vehicle over the highways of the State of Illinois. Another point argued here is that plaintiff, being a non-resident, is not entitled to benefits of the Illinois non-resident service statute. Both questions seem to be of first impression in this State.

We consider first the question whether the Illinois non-resident service statute permitting substituted service of process upon non-residents is restricted to actions ex delicto.

The pertinent provisions of the Illinois non-resident service statute (Ill. Rev. Stat. 1951, chap. 95 1/2, par. 23 [Jones Ill. Stats. Ann. 85.023]) are as follows:

"The use and operation by any person of a motor vehicle over the highways of the State of Illinois, shall be deemed an appointment by such person of the Secretary of State, to be his true and lawful attorney upon whom may be served all legal process in any action or proceeding against him, growing out of such use or resulting in damage or loss to person or property, and said use or operation shall be signification of his agreement that any such process against him which is so served, shall be of the same legal force and validity as though served upon him personally if such person is a non-resident of this State or at the time a cause of action arises is a resident of this State but subsequently becomes a non-resident of this State. . . ."

This question was before the Supreme Court of Louisiana in Maddry v. Moore Bros. Lumber Co. (1940), 195 La. 979, 197 So. 651, and it was held that the non-resident service statute there under consideration was not restricted to actions ex delicto where such grew out of the use or operation of the motor vehicle over the highways of the State. In that case plaintiff, a Louisiana resident, sued defendants, a partnership and the members thereof, all of whom were residents of Texas, for injuries received while riding in an automobile owned by the partnership and driven by its employee. Plaintiff asked in the alternative for an award of compensation under the Employers' Liability Act if it was held that at the time of the accident he was an employee of the partnership. Service was made against the defendants on the Secretary of State and the defendants claimed the Act did not apply to a compensation claim, as compensation is based on contract and the Act applied only to personal injury actions. The court, in holding the contrary, quoting its statute to the effect that the Secretary of State of Louisiana was appointed by such non-resident "to be his true and lawful attorney for service of process, upon whom may be served all lawful process in any action or proceeding against said non-resident growing out of any accident or collision in which said non-resident may be involved while operating a motor vehicle on such highways, or while same is operated by his authorized employee," said in part (pp. 652, 653):

"From a reading of the above quoted Section of the Act it is apparent that a non-resident, or his agent, who operates a motor vehicle on the highways of this State, shall be deemed thereby to have appointed the Secretary of State as his attorney for service of process in any action or proceeding against the non-resident growing out of any accident or collision in which the non-resident or his agent may be involved while operating a motor vehicle on the highways of this State. . . . The language used, `any action or proceeding,' is very broad and covers the instant case. If it had been the intention of the Legislature that the service of process was to be restricted to actions ex delicto, it appears that there would have been some language used to that effect. From the very language used, which is very broad and all inclusive, it would appear that it was the intention of the Legislature to embrace actions of any and every nature growing out of an accident or collision in which the non-resident is involved while making such use of the highways of this State.

"The Louisiana Employers' Liability Act deals with personal injuries received by accidents arising out of and in the course of employment. It is apparent that the cause of action under the Act grows out of an accident. The Act itself frequently refers to and uses the word `accident.' While it is true that the right of action is based on an implied contract yet if there was no accident there would be no implied contract and no recovery could be had. The implied contract only comes into effect after the accident occurs."

It is to be noted that the language of the Louisiana statute "in any action or proceeding against said non-resident growing out of any accident or collision in which said non-resident may be involved" is very similar to the language of our own statute, which provides for substituted process "in any action or proceeding against him growing out of such use [highway use] or resulting in damage or loss to person or property." We are impressed with the argument in the Louisiana opinion that if it had been the intention of the legislature that service of process was to be restricted to actions ex delicto there would have been some language used to that effect. As in the case of the Louisiana statute, there is no qualifying language whatsoever in the language of the Illinois statute restricting the non-resident statute to actions ex delicto. In attempting to distinguish the Louisiana case, counsel argues that the Illinois statute uses more limited language by restricting its application to any action or proceeding growing out of "use or operation" of a motor vehicle over the Illinois highways. We are inclined to believe that "use or operation" is broader in scope than "accident or collision," rather than more limited. On the whole the language of the two statutes seems to be practically identical in its intent and purpose and we are unable to agree with the distinction sought to be made by defendants' counsel.

Another case closely in point is Southeastern Greyhound Lines v. Myers (1941), 288 Ky. 337, 156 S.W.2d 161. In that case the facts indicated a collision occurred between a bus owned and operated by plaintiff and a truck owned and operated by defendant as a result of the negligence of both drivers. One of plaintiff's passengers was injured. Judgment was rendered against plaintiff in a suit wherein defendant was not a party. Plaintiff paid the judgment and defendant upon demand refused to contribute. Suit was brought and defendant's motion to quash service of summons under the Kentucky non-resident service statute was sustained. This statute provides (sec. 12-1):

"That any non-resident of this Commonwealth, being the operator or owner of any motor vehicle, who shall accept the privilege extended by the laws of this Commonwealth to non-resident operators and owners of operating a motor vehicle or having same operated, within the Commonwealth of Kentucky, shall by such acceptance, and by the operation of such motor vehicle within the Commonwealth of Kentucky, make and constitute the Secretary of State of the Commonwealth of Kentucky his, her or their agent for the service of process in any civil suit or proceeding instituted in the courts of the Commonwealth of Kentucky against such operator or owner of ...


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