Dowling v. . Winters

181 S.E. 751, 208 N.C. 521, 1935 N.C. LEXIS 69

• Court: Supreme Court of North Carolina
• Decided: October 9, 1935
• Status: Published

Opinion

Stacy, C. J.

The plaintiff is a nonresident; the defendant, a nonresident executor of a nonresident decedent; the cause of action, transitory, growing out of a motor vehicle accident or collision, occurring on a public highway in this State. Plaintiff alleges she was riding as a guest •of defendant’s testate at the time of the injury.

Is service of summons through the Commissioner of Revenue, as provided by O. S., 491 (a), for service of process on nonresident operators of motor vehicles on the public highways of this State, sufficient to bring the defendant into court in the instant case so as to confer jurisdiction •over the person of the defendant? The answer is, No. Smith v. Haughton, 206 N. C., 587, 174 S. E., 506.

It is provided by the statute in question that a nonresident who .accepts the benefits of our laws by operating a motor vehicle on the qrablic highways of this State shall be deemed to have appointed the State Commissioner of Bevenue “bis true and lawful attorney upon whom may be served all summonses or other lawful process in any action or proceeding against him, growing out of any accident or collision in which said nonresident may be involved by reason of the operation by him, for him, or under his control or direction, express or implied, of a motor vehicle on such public highway of this State,” etc. Then follows provision as to how service may be obtained through the office of Commissioner of Eevenue. The validity of the act was upheld in Ashley v. Brown, 198 N. C., 369, 151 S. E., 725; Bigham, v. Foor, 201 N. C., 14, 158 S. E., 548.

It will be observed the statute makes no provision for service of process upon the executor, administrator, or personal representative of the nonresident motorist, who, if living, might have been served with process under the act. Nor is it provided that such “appointment” shall be irrevocable.

In considering a similar statute, the Wisconsin Supreme Court held that it did not provide for service of process upon the executor, administrator, or personal representative of a deceased nonresident, who, in his lifetime, had operated a motor vehicle on the highways of Wisconsin, but who died prior to service of summons through the designated state official. State ex rel. Ledin v. Davison, 216 Wis., 216, 96 A. L. R., 589. The language of our statute suggests a like interpretation.

It is also the general holding that an appointment or agency, unless it be a power coupled with an interest, is terminated by the death of the principal. Fisher v. Trust Co., 138 N. C., 90, 50 S. E., 592; Wainwright v. Massenburg, 129 N. C., 46, 39 S. E., 725.

The rule that death revokes a simple agency was held to preclude substituted service in case of death of the defendant, a nonresident, under a provision making the commissioner agent for the acceptance of process in Lepre v. Trust Co., 11 N. J. Misc. R., 887, 168 Atl., 858.

The motion to dismiss was properly allowed.

Affirmed.