McCoy v. Siler

205 F.2d 498, 1953 U.S. App. LEXIS 2616

• Court: Court of Appeals for the Third Circuit
• Decided: June 10, 1953
• Docket: 10952_1
• Status: Published

Opinions

GOODRICH, Circuit Judge.

This case concerns the Pennsylvania nonresident motorist statute and the United States statutes on venue. The plaintiff, an Iowa resident, sued the defendants, residents of North Carolina, for damages resulting from a motor vehicle accident which occurred in Pennsylvania. Service was made following the provisions of the Pennsylvania nonresident motorist statute.¹ The defendant raises the point that venue is lacking since the federal statute provides that: “A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside.” ²

A state cannot by legislation modify or repeal a Congressional statute on the venue of federal courts.³ On the other hand it is very clear that the venue provision may be waived. The question in this case is whether the defendants’ privilege to be sued where either the plaintiff or they reside has been waived by anything they have done. Waiver, it is well established, can be by conduct as well as by expressed consent.⁴

In Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 1939, 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, it was held that a corporation waived the venue provisions by designating a state officer to receive service of process. From that it is argued that a motorist waives his venue privilege when he drives on the highways of a state whose law provides for service upon a designated public officer in a suit against a nonresident who has the misfortune to have an automobile accident within the state. Since these statutes are frequently phrased m terms of an appointment of the public officer to accept service of process, it is argued that a consent to service in that fashion, and to the jurisdiction of the state’s courts, is implied.

As to the use of the fiction of consent to establish jurisdiction of a state for suit under these nonresident motorist statutes we can add little to the discussion by the First Circuit in Martin v. Fischbach Trucking Co, 1 Cir, 1950, 183 F.2d 53. The fiction of consent did well enough to provide the foundation for a step in expanding the jurisdiction which a state may exercise through its courts. But it is now perfectly clear that the jurisdiction rests on power and not consent at all; this is recognized by practically every thoughtful writer on the subject.⁵

When it comes to the question of venue presented by this case quite a number of District Courts and one Court of Appeals have thought that the Neirbo case provided the analogy for the finding of waiver of venue here.⁶ Others have thought the e contrary.⁷

We insist, however, that there is a real distinction between the cases where a party in fact gives consent to suit by appointing an officer of the state to receive process and a case where the party is drawn into court willy-nilly without any manifestation of consent on his part. It was many years ago held that if a corporation in fact designated such officer, that was consent, and the scope of the consent was a matter for the state's determination even though it could not force a corporation against its will into court except for the outcome of things done locally.⁸ We think that when a motorist comes into a state and has an accident and is brought into court to defend himself from the consequence of that accident he does not consent to anything. He is in the state’s court because the state has power to bring him - there following his use of the state’s highways. It seems to us unreal to say that he has “waived” the provision of a federal statute which gives him the privilege of being sued in certain places only. It seems to us a fictitious and illogical jump to reach such a conclusion. y. e y j. ^ 1 r a , X j. * 1 ‘ " t 1 ^ 3 1

We were pressed with the analogy of Knott Corp. v. Furman, 4 Cir., 1947, 163 F.2d 199, certiorari denied 1947, 332 U.S. 809, 68 S.Ct. 111, 92 L.Ed. 387. That case decided that the jurisdiction exercised by E i . : r a. state over a foreign corporation doing business within its boundaries is based on an implied consent indistinguishable from the express consent involved in the Neirbo case. Consequently the corporation waives its federal venue privilege by doing business in the state. In our opinion that case overlooked the clear distinction, drawn by the Supreme Court itself in the Neirbo opinion, between true and fictitious consent.⁹ It is that very distinction which led this court to a contrary result on the precise issue involved in the Knott case. Robinson v. Coos Bay Pulp Corp., 3 Cir., 1945, 147 F.2d 512. Two other Courts of Appeals have agreed with us.¹⁰ Insofar as the issue involved in those cases is analogous here, the weight of authority supports our conclusion.

The settlement of the question here involved is not one which, either way, will shake the .foundations of American jurisprudence. Nor should it arouse violent emotions among those differing in opinion upon it. There is no hardship on the plaintiff if he cannot get into federal court in the Eastern District of Pennsylvania. The state court is open to him. There is no hardship on the defendant if we should decide that the venue provisions have been waived. He is subject to suit in state court anyway, and we take it that it is no harder to defend in one court- than the other. Nor can we see any social issue involved. The only policy consideration which is apparent is that we should not be astute to widen federal diversity jurisdiction. However, we think the logic of the matter is in accordance with the First Circuit case and we shall follow it. The dissent of our brethern of the Sixth Circuit ■does not seem to us convincing.

The judgment of the District Court will be affirmed.

1 . Pa.Stat.Ann. tit. 75, § 1201, Purdon.

2 . 28 U.S.C. § 1391(a).

3 . Murphree v. Mississippi Pub. Corporation, 5 Cir, 1945, 149 F.2d 138, affirmed 1946, 326 U.S. 438, 66 S.Ct. 242, 90 L.Ed. 185. Consequently the provisions in the Pennsylvania statute that suits against nonresident motorists may be brought in United States District Courts, as well as in state courts, in Pennsylvania can have no effect on this ease.

4 . See cases cited in 56 Am.Jur. 117-118, notes 8-10.

5 . As early as 1919, Mr. Justice Holmes, in discussing the basis of jurisdiction over foreign corporations doing business in a state, said: “But the consent that is said to be implied in such cases is a mere fiction, founded upon the accepted doctrine that the States could exclude foreign corporations altogether, and therefore could establish this obligation as a condition to letting them in.” Flexner v. Farson, 248 U.S. 289, 293, 39 S.Ct. 97, 98, 63 L.Ed. 250. Mr. Austin Scott has analyzed the nonresident motorist statutes in the same manner and has said: “It is surely unfortunate to deal with a question of jurisdiction on the basis of a fiction. To say that jurisdiction is based upon consent, but that when a foreign corporation does business in a state, its consent to the jurisdiction of the courts of the state is conclusively presumed * * * is an unhappy way of expressing an undoubtedly sound result.” Scott, Jurisdiction Over Nonresident Motorists, 39 Harv.L.Rev. 563, 574 (1926).

See also the opinion of Judge Learned Hand in Smolik v. Philadelphia & Reading C. & I. Co., D.C.S.D.N.Y., 1915, 222 F. 148, 151; also that of Mr. Chief Justice Stone in International Shoe Co. v. State of Washington, 1945, 326 U.S. 310, 338, 66 S.Ct. 154, 90 L.Ed. 95.

In Hess v. Pawloski, 1927, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091, there is some, though not very much, language which would support the view that jurisdiction over nonresident motorists is based on their implied consent, “but the tendency in later cases is to recognize that the real basis is that of public policy and convenience.” Culp, Process In Actions Against Non-Residents Doing Business Within a State, 32 Mich.L.Rev. 909, 921 (1934).

Whether the basis of jurisdiction is the power of the state to exclude the motorist, or the state’s general police power (compare Scott, supra, with Culp, supra), there is no doubt that the act of driving in the state is a sufficient basis for exercising jurisdiction, and the implication of consent is neither necessary nor accurate. See Restatement, Conflict of Laws, § 84, especially comment a (1934 cd.); Restatement, Judgments, § 23 (1942 ed.); Goodrich, Conflict of Laws 201 (3d ed.).

6 . Olberding v. Illinois Central Railroad Co., 6 Cir., 1953, 201 F.2d 583; Falter v. Southwest Wheel Co., D.C.W.D.Pa., 1953, 109 F.Supp. 550; Archambeau v. Emerson, D.C.W.D.Mich., 1952, 108 F.Supp. 28; Jacobson v. Schuman, D.C.Vt., 1952, 105 F.Supp. 483; Garcia v. Frausto, D.C.E.D.Mo., 1951, 97 F.Supp. 583; Kostamo v. Brorby, D.C.Neb., 1951, 95 F.Supp. 806; Burnett v. Swenson, D.C.W.D.Okla., 1951, 95 F.Supp. 524; Thurman v. Consolidated. School Dist., D.C.Kan., 1950, 94 F.Supp. 616; Urso v. Scales, D.C.E.D.Pa., 1950, 90 F.Supp. 653; Morris v. Sun Oil Co., D.C.Md., 1950, 88 F.Supp. 529; Steele v. Dennis, D.C.Md., 1945, 62 F.Supp. 73; Krueger v. Hider, D.C.E.D.S.C., 1943, 48 F.Supp. 708; Andrews v. Joseph Cohen & Sons, D.C.S.D.Tex., 1941, 45 F.Supp. 732.

7 . Martin v. Fischbach Trucking Go., supra; Waters v. Plyborn, D.C.E.D.Tenn., 1950, 93 F.Supp. 651.

8 . Pennsylvania Fire Ins. Co. v. Gold Issue Mining Co., 1917, 243 U.S. 93, 37 S.Ct. 344, 61 L.Ed. 610.

9 . 308 U.S. at page 173, n. 15, 60 S.Ct. 153, distinguishing, rather than overruling, the case of In re Keasbey & Mattison Co., 1895, 160 U.S. 221, 16 S.Ct. 273, 40 L.Ed. 402.

10 . Moss v. Atlantic Coast Line R. Co., 2 Cir., 1945, 149 F.2d 701; Cummer-Graham Co. v. Straight Side Basket Corp., 9 Cir., 1943, 136 F.2d 828. This question is now academic in view of the 1948 amendment to the Code broadening the venue provisions of an action against a corporation. 28 U.S.C. § 1391 (c).