McCOY v. SILER et al.
No. 10952.
United States Court of Appeals Third Circuit.
Argued March 20, 1953. Decided June 10, 1953.
205 F.2d 498
Alan Kahn, Philadelphia, Pa. (Ernest R. White and Richter, Lord & Farage, Philadelphia, Pa., on the brief), for appellant.
Peter P. Liebert, III, Philadelphia, Pa. (John J. McDevitt, 3rd, Philadelphia, Pa., on the brief), for appellee.
Before BIGGS, Chief Judge, and MARIS and GOODRICH, Circuit Judges.
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 occurrеd 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
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 wаived 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 in terms of аn 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 steр 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
We insist, however, that there is a real distinction between the cases whеre 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.
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 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. Consequеntly 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 hеre 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 cоurt 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 in-
The judgment of the District Court will be affirmed.
MARIS, Circuit Judge (concurring).
I join fully in everything which is said in the opinion of the court. I desire to add a few words, however, since I think that the action of the district court may be sustained on the additional ground that the court never acquired jurisdiction of the persons of the defendants. Merely carrying out in this case the ritual of serving process upon the state‘s own officer, the Secretary of the Commonwealth,11 was not sufficient validly to summon the nonresident defendants into court. This was settled in Wuсhter v. Pizzutti, 1928, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446. In that case the Supreme Court held that in order to afford a nonresident motorist procedural due process of law it is necessary to provide for giving reasonable notice of suit to the nonresident himself. Pennsylvania Civil Procedure Rule 2079(a)12 provides
It may be thought that the conclusion which the court has reached in the present case is inconsistent with the doctrine of Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. It is true that there is here diversity of citizenship and jurisdictional amount and that the case might have been brought in the Pennsylvania state courts. It is also true that the sweep of Erie R. Co. v. Tompkins takes in not only the field of what has been conventionally regarded as substantive law, but also calls for the application in federal diversity cases of many state laws which for other purposes are regarded as procedural.15 But the application of the Rules of Decision Act under the doctrine of Erie R. Co. v. Tompkins necessarily stops at the point where in the procedural field an Act of Congress or a rule of procedure promulgated by the Supreme Court pursuant to Congressional authority prescribes a uniform rule for the federal courts to follow. That is the situation here. True, the plaintiff could have brought suit in the state court and the defendant could have removed the suit to the federal district court. For
BIGGS, Chief Judge (dissenting).
Every one of the forty-eight states and the District of Columbia has a nonresident motorist statute. The first of these was enacted in 1923 and the tide was almost full by 1934.18 Under such circumstances it seems reasonable and realistic — rather than “unreasonable” or “unrealistic”
Thе nonresident motorist entering the Commonwealth of Pennsylvania should be deemed to be aware that he necessarily appoints a state official as his agent for service. And since service on this official under the state statute is also sufficient to confer jurisdiction upon the federal court under FRCP 4(d)(7), the motorist should also be deemed to anticipate being held to answer suit in such a court. Concededly, a state legislature cannot legislate effectively as to venue in a federal court. But while the Commonwealth of Pennsylvania, in enacting Section 1201, 75 P.S.Pa., providing that the motorist constitutes a state official his agent for service in the courts of the Commonwealth and “* * * in the United States District Courts of Pennsylvania * * *“, could not affect the federal venue statute, it did provide a basis for the conclusion that a motorist who subjects himself by his conduct to the jurisdictional provisions of the statute should also be deemed to waive his federal venue privileges.19
In Neirbo the Supreme Court pointed out that corporations do business outside their originating bounds and this fact made “intolerable their immunity from suit in the states of their activities.” As economic advances were made the law took the changed circumstances into consideration and, finally, in Ex parte Schollenberger, 1877, 96 U.S. 369, 24 L.Ed. 853, “Mr. Chief Justice Waite * * * displaced metaрhor with common sense.” As was also said in Neirbo the decision in the Schollenberger case “was not a matter of technical legal construction, but a way of looking at corporations“, and “Men‘s minds have become habituated to corporate activities which crossed state lines.” So here, save only that the Pennsylvania nonresident motor-
The fiction employed in Neirbo is a useful legal artifact. I can perceive no reason why a similar artifact should not be employed in the instant case. All the circumstances seеm to call for its use. In the present state of the law, including the forty-nine nonresident motorist statutes, it seems artificial not to employ the fiction and to hold that the nonresident motorist consents to be sued in the state when he enters it. As I have reiterated, it seems unreasonable at least under the circumstances at bar, to treat the motorist‘s implicit consent to be sued in the state on a different basis from an express consent by him. If minе be a reasonable interpretation of the law and the operative facts it would seem to follow that the nonresident motorist should be deemed to have waived his venue privilege in a United States district court.
I do not agree with the reasoning or the conclusion in Martin v. Fischbach Trucking Co., 1 Cir., 1950, 183 F.2d 53. I agree with the conclusion reached in Olberding v. Illinois Central R. Co., 6 Cir., 1953, 201 F.2d 582.
For the reasons stated I must respectfully dissent from the view expressed by the majority.