*1 608 v LINKFIELD SCHNEIDER of the Decision Court Long-Arm 1. Courts —Jurisdiction Over Nonresidents — Statute— Automobiles. provision long-arm A of the statute that the act or acts which use, relationship ownership, possession create a or "[t]he personal tangible property any real or situated within the state”, jurisdiction a sufficient basis of constituted enable the Michigan personal juris- courts of record of to exercise limited diction over nonresident defendants who were sued to recover damages injuries for received in an automobile accident in where, accident, Indiana at the time of the defendant driver Michigan, injured parties was licensed the State of all the were residents and all the involved vehicles were (MCLA 600.705[3]). both titled and licensed
For Affirmance Kavanagh T. G. JJ. Appeal Preserving
2. and Error — Issues —Courts—Jurisdiction Long-Arm Over Nonresidents — Statute. provision long-arm The issue of under a of the statute properly properly raised in the trial court and is before appeal apparent plaintiffs, arguing Court on where it judgment, raising defendants’ motion for accelerated all of possible grounds defendants, over (MCLA600.70S). nonresi- Michigan, dents of under that statute Long-Arm 3. Courts —Jurisdiction Over Nonresidents — Statute— Automobiles —Constitutional Law —Due Process. Defendants, state, residents of another did come within the provision covering "[tjhe context of a use, ownership, possession tangible personal real or [2] [7] [1, 3-6, 50 Am 5 Am Jur 8-13] Jur, 2d, Appeal 20 Am Jur Statutes References §§ and Error 545. 2d, for Points Courts 144. 58. § in Headnotes state", where, property within at the time situated defend- state, plaintiffs’ automobile in struck another ants’ automobile Michigan, of the State of were residents their *2 by Michigan, the State of it was in vehicle was licensed titled Michigan, by the driver of the car was licensed the State of the Michigan; by permit- of is not due law violated State of (MCLA 600.70S[S]). ting jurisdiction such defendants over Long-Arm Nonresidents — 4. Courts —Jurisdiction Over Statute— Law —Due Process. Construction —Constitutional long-arm generally construed their statutes as ex- Courts have tending jurisdiction permitted to the farthest the state’s limits process. by due For Affirmance J., Kavanagh, Coleman, T. M. C. and Williams and M. S. JJ. Jurisdiction—Long-Arm 5. Courts — Statute —Automobiles. of case where nonresident defendants facts were sued to damages injuries for received in recover an automobile accident Indiana, in at the time of the accident the defendant driver was by Michigan, together licensed the State of with the fact that parties Michigan parties, all the involved were and that all the Michigan, both titled involved vehicles were and licensed in given proximity Michigan and the of the accident to the border requirements jurisdiction demonstrates that the tests of for of play "minimum contacts" and "traditional notions of fair and justice” respect provision substantial are met with to a of the long-arm statute that the act or acts which create a relation- "ltjhe use, ship ownership, possession any or real or tangible personal property situated within the state” shall jurisdiction constitute a sufficient basis of to the enable courts Michigan personal jurisdiction of record of to exercise limited (MCLA ?05[3]). over an individual 600. 6. Courts —Jurisdiction Over Nonresidents —Automobiles. jurisdiction Michigan
The fairness of in courts over nonresident damages injuries defendants in a lawsuit to recover for received by in an automobile accident Indiana is illustrated the significant relationships Michigan defendants had the time of the accident that: the defendant driver licensed Michigan together State of with the fact that all parties Michigan parties, involved were and that all the in- Michigan, volved vehicles were both titled and licensed and given proximity of the accident to the border. 389 Mich 7. Constitutional Law —Statutes. application of a statute constitutional must be determined in every light particular instance in of the facts of the case. Long-Arm 8. Courts —Jurisdiction Over Nonresidents — Statute— Automobiles —Constitutional Law —Constructive Situs— Due Process. provision A statute that the act or acts which '[tjhe use, relationship ownership, possession create a tangible personal property real or situated within the state" shall constitute a sufficient basis of to enable personal courts of record of to exercise limited applied over an individual is constitutional as speciffc facts of a case where nonresident defendants were n damages injuries sued to recover received an automobile Indiana, accident in at the time of the accident the defendant Michigan, together driver was licensed the State of with the parties Michigan parties, fact that all the involved that all the involved vehicles were both titled and licensed in Michigan, given proximity of the accident to the Michigan border, require but this decision does not the Michi- *3 gan Supreme promulgate sweeping generaliza- Court to such a and, instances, many tion as "constructive situs” the due process Supreme restraints of a decision of the United States prohibit Court would such a rule as an exclusive litmus test of (MCLA 600.705[3j).
Dissenting Opinion T. E. Long-Arm
9. Courts —Jurisdiction Over Nonresidents — Statute— Automobiles. Michigan long-arm long enough statute is not to reach Michigan defendants who were not residents of at the time attempted, although service of was defendants were Michigan residents of the time the automobile accident Indiana, by occurred in their vehicle was licensed the State of Michigan, Michigan, their vehicle was titled in the State of by the driver of the car was a driver licensed the State of Michigan; (MCLA none of these four "contacts" are relevant 600.705). Long-Arm 10. Courts —Jurisdiction Over Nonresidents — Statute. Michigan long-arm solely statute to has do with circum- Michigan may per- stances under which courts exert limited (MCLA 600.705[3j). sonal over nonresidents Over Nonresidents —Service of 11. Courts —Jurisdiction Process —Secretary State. of Statute, providing any against of that ’’service summons in action person, of a the time such service is a who at nonresident of state, growing any out of accident or this collision in which may person operating such have been involved while a motor upon highway public a of this state or in vehicle which a motor by may being him vehicle owned have been involved while consent, express operated implied, public or with his on such highway, upon may secretary made the be of state as the true person attorney legal of such with the lawful same force as personally state”, permits if on within this served him service agent upon Secretary as of State for a nonresident motorist only upon public highway in cases where the collision occurs a 257.403). (MCLA Michigan of the State of 12. Process —Nonresident Defendant —Court Rules. providing for of
Statute service summons on a nonresident of Michigan purport appoint Secretary not does of State as agent of the nonresident motorist where the accident does upon Michigan being highway; agent not occur a there no to be Michigan, within the State of found there is no basis for service registered mail nonresident defendants outside of the providing state under the court rule for substituted service (MCLA GCR1963, 257.403; 105.2[1]). Long-Arm 13. Courts —Jurisdiction Over Nonresidents — Statute —Automobiles—Constructive Situs. situs, Concept of constructive that an automobile involved an constructively accident another state was situated in Michi- gan Michigan because it titled of State and there- provision purview fore comes within the of of a providing relationship the existence agent arising an between individual or his and the state out of creating relationship use, ownership, acts of ”[t]he possession tangible personal property real or situated within the jurisdic- state” shall constitute a sufficient basis of tion to enable the courts record to exercise *4 personal limited over such individual to enable personal judgment against such courts to render such individ- ual, (MCLA authority 600.705[3j). has no in basis Appeal from Court Appeals, 3, Division R. B. Burns, J.,P. Burns, JJ., and Levin and T. M. re- versing and Kent, remanding John H. Vander 608 Swainson, by Opinion J. (No. 7, 1973. Wal, March March J. Submitted 54,120.) Decided July No. Term Docket 1973. 131 affirmed. App
40 Mich Schneider and Marjorie Russell Complaint by Linkfield, Evelyn Roberta against Eugene Murphy, Murphy for Jeanne Marie sustained an automobile damages injuries for for judgment Accelerated collision. to the Court of appealed Ap- Plaintiffs
Murphy. Mur- and remanded. Defendants peals. Reversed Affirmed. phy appeal.
Hillman, Joel M. Boy- Baxter & Hammond (by den), plaintiffs.
Wheeler, & Uhl L. Upham, Bryant Geoffrey (by Gillis), Murphy. for defendants affirmance). (for Marjorie Plaintiff three injured car accident Schneider was passenger in Indiana. She was a which occurred operated John by owned and an automobile The Boelma automobile first struck Boelma. Linkfield, and by car driven defendant Roberta driven de- by then struck an automobile and owned defendant fendant Jeanne accident, May Eugene Murphy. At the time of 11, 1968, parties were resi- all residents of Murphys dents. accident, but time of the occurrence of the lawsuit,
prior to the commencement Jersey moved their residence to New Murphys reside. they presently where 7, 1970, all of plaintiffs against filed suit May On 24, 1970, Murphys August the defendants. On *5 613 Swainson, Opinion J. process, service of to quash to dis- a motion filed action, judgment. for accelerated On miss the opin- trial court rendered an October jurisdiction court lacked over holding ion 23, 1970, On November Murphy.1 the defendants judgment favor of the of accelerated an order was entered. defendants reversed and remanded for Appeals
The Court of jurisdiction there was over the holding trial statute, MCLA under question Since this is a 600.705; MSA 27A.705.2 state, granted in our we leave to impression first (1972). 811 appeal. 387 Mich appeal. been raised on Two issues have (1) plaintiffs properly raised the Whether of the court over de- jurisdiction of the question 600.705(3); to MCLA MSA pursuant fendants 27A.705(3) the trial court level?
(2) juris- are to subject the defendants Whether 27A.705(3)? 600.705(3); MCLA MSA diction under jurisdiction are to subject the defendants Whether (2) 600.705(1), (4); 27A.705(1), or MSA under MCLA (2) (4)? or
I. 600.705; provides: MSA 27A.705 MCLA relationships any following of the "The existence of agent an or his and the state shall between individual to enable the constitute courts of record of this state to exercise sufficient basis per- limited and to enable sonal such courts over such individual against personal judgments to render such representative arising the act or individual or his out of following relationships: any acts which create 1Hereinafter referred to as defendants.
2 (1972). App 40 Mich 389 Opinion by "(1) any The transaction of business within the state. "(2) causing doing any done, or act to be or occur, consequences in the resulting state in an action for tort. "(3) use, possession ownership, real or
tangible personal property situated within the state.
"(4) Contracting person, any to insure property, or risk located within this state at the time of contracting.
"(5) Entering into a contract for services to be ren- dered or for materials to be furnished in the state the defendant.
"(6) director, Acting manager, trustee, as a or other officer of, any corporation incorporated under the laws having principal place or within, its of business the Michigan.” state of Defendants contend that the decision of the Court Appeals should be reversed because the case ground was decided that plaintiffs had not raised in the trial court. Defendants admit that plaintiffs argued there was under 705(2) 705(1) RJA and RJA but did § not raise § 705(3). issue of under RJA § general rule that issues and claims not advanced in the trial court will not be considered for the first time on appeal has upheld been in Maxson v Bay County, 290 Mich Michigan.
(1939); Village of St. Clair Village Shores v Woods, Grosse Pointe 319 Mich (1947); Therrian v Laboratories, Inc, General 372 Mich (1964). 487, 490 However, a review of the record demonstrates that the issue of jurisdiction under 705(3) RJA was raised in the § trial court. The court passing in on the motion was dealing all of the subsections of RJA 705. Defendants’ § attorney arguing the motion for accelerated judgment went through possible grounds all of the for jurisdiction under RJA 705 and contended Opinion He stated apply. concerning RJA
they did not §705(3): "Now, ground, ownership, posses- third use or tangible property or situated within the any
sion of real nothing that in like this case.” Certainly, state. attorney response stated: plaintiffs’ Court, Honor, Your I "May please it take it that to, point, this down at this is the we have boiled what Long not Arm question of Statute whether applies.” object did not to this state- attorney
Defendants’ ment, apparent plaintiffs it were rais- ing possible grounds all of the under RJA §705 disputing and defendants rule cited above was com- grounds applied. The in this case. The issue raised the trial plied with *7 jurisdic- RJA 705 conferred court was whether § defendants. That is the same issue on tion over the It raised in the trial appeal properly here. was properly and is before the Court on court below appeal.
II. The issue involves the construction of basic 27A.705(3). 600.705(3); MCLA MSA It is not dis- accident, puted that at the time of the defendants titled in Mich- personal property owned which was igan located in Indiana. Plaintiffs physically but pointed have out that defendants had the follow- Michigan. ing contact with the State of (1) Michigan. of Murphys were residents The the (2) licensed Murphy vehicle Michigan. of State 389 Opinion by
(3) was titled in vehicle the State of Michigan.
(4) Defendant, Murphy, Jeanne the driver of the car, by the Was a driver licensed State of Michi- gan. Horen,
In
Sifers v
(1971),
firmed and cause plaintiffs. J., Kavanagh, T. concurred with G.
J. affirm). (to
Williams, I While feel Justice proper reaches the conclusion opinion Swainson’s Michigan long-arm the statute to using in this case result, just and common-law achieve a reasonable opinion Michigan introduces into law part II of his situs”, concept concept "constructive a the novel the goes which well due considera- beyond jurisdiction tions which lead us to assert here. Washington, vCo International Shoe 326 US (1945), 310; 95; 161 ALR 154; 90 L Ed 66 S Ct jurisdiction: requirements recites the oft-stated and "traditional notions of "minimum contacts” of this justice”. fair and facts play substantial are that these tests met with case demonstrate 705(3). opin- respect to RJA Justice Swainson’s § relationships significant ion notes the the of the accident. Michigan had time all contacts, fact together with the These parties Michigan parties, and involved were all and vehicles both titled the involved Michigan, given proximity licensed border, this to the illustrate accident courts. fairness of goes far But the rule of "constructive situs” example, case. For beyond the facts of instant might con- be concept of "constructive situs” under strued to allow the assertion 705(3) in Alaskan defend- RJA the context of an it Michigan, titled her car in purchased ant who intending it to even- here, back to Alaska drove title, change California injured tually months Washington in the State of two plaintiff *9 618 Mich 389 608 Brennan, Opinion by T. E. J. of say
later. To a matter that course as "construc- in tive such a principles situs” situation satisfy either justice the fairness demands or the requirements minimum of International contacts Shoe would be absurd. clearly application
The constitutional of a statute must be in every light determined instance of the particular facts of case. Cooley, Constitutional (1st ed), Co, 180; Limitations Straus v Elless p 245 Smith, (1929); People v 108 Mich (1896). Thus, while I concur in Justice respect result with Swainson’s constitution 705(3) ality application of RJA to the specific case, of the instant I facts note that this does not decision require us to promulgate such a sweeping generalization as "constructive situs” that, instances, in many the due con straints of International Shoe would prohibit application of such rule as an exclusive litmus test of jurisdiction. J., Kavanagh, Coleman,
T. M. J., C. and M. S. Williams, concurred with J.
T. Brennan, agree E. I (dissenting). J. cannot enough long to reach these defendants.
The majority opinion states: disputed accident, "It is not at the time personal defendants owned Michigan property which was titled physically but located in Indiana. Plaintiffs pointed following have out that defendants had the Michigan. contact State of "(1) Murphys Michigan. The were residents of "(2) Murphy vehicle was licensed the State of Michigan. "(3) vehicle was titled the State
Michigan. Opinion by T. E.
"(4) Defendant, Murphy, car, Jeanne the driver of the by the State Michigan.” a driver licensed "contacts” None of these four are relevant. It the Murphys is conceded that were residents the time of Michigan at the accident. The *10 of their licensing titling and vehicle in Michigan So, were natural incidents of that too, residence. licensing of the driver of the defendants’ vehi- in Michigan cle was incident to the residence of Michigan Jeanne at the time of the accident.
The Murphys were not residents of Michigan at process the time service of attempted in this case. nonresidents,
They just as surely as if they had Michigan. never lived in
The majority tacitly concedes the irrelevance of the defendants’ former residence in Michigan. They bottom the claimed upon the long-arm statute, MCLA 600.705(3); MSA 27A.705(3). That has to do solely with circumstances under Michigan which courts may exert personal limited over nonresi- dents.
If the defendants were residents of Michigan at or, time of service process, being even nonresidents, if they were in fact personally served while physically within the State of Michigan, there would be no rely upon need to case, statute. In such the Michigan courts would not personal have mere juris- limited diction, it general would have personal jurisdic- tion. 600.701; MCLA MSA 27A.701.
But the defendants were not residents the time of process. service of Sometime be- tween the happening of 11, the accident May on Opinion by T. E. commencement the action on May 7,1970, moved to New Murphys Jersey. plaintiffs not known to the
This fact was until commenced. after the action was 3, 1970, plaintiffs filed in August On the Kent proof County Circuit Court service and an of nonresidency: affidavit
"PROOF OF SERVICE AND AFFIDAVIT OF NON- RESIDENCY 1970)
"(Filed August "PROOF OF SERVICE "State of
"SS
"County of Kent sworn, being Boyden, duly deposes
"Joel M. says: "1. attorneys plaintiffs That he is one of the for the cause; 9, 1970, captioned May the above that on he placed in the hands of the sheriff of Oakland County, Michigan, copies Complaint of the Summons and in this Eugene cause for service Murphy and *11 Murphy; copy deponent’s Jeanne Marie that a receipt part therefor is attached' hereto and made a this affidavit. Complaint "2. That the Summons and heretofore placed in the hands of the sheriff of County Oakland on 9,May 1970 have remained in the hands of said sheriff service, continuously up since that date and to the present time. That, upon being apprised by "3. the sheriff of Oak- County Eugene land that defendants and Jeanne Marie Murphy longer were no residents last known Michigan, plaintiffs attempt address in did to ascertain present their address. plaintiffs "4. That have now learned that defendants Eugene and Jeanne Murphy Marie are now residents of Jersey, the state of New address in New and that their last known Duncan, Kus, Jersey Ho Ho New Jersey, and that this is the last known and non-resident address of these defendants. Opinion by E.T. 24, 1970, deponent July
"5. That on did serve a true Complaint copy upon of the Summons and this cause Eugene Murphy and the defendants Jeanne Marie Mur- through Secretary phy the office of the of State of the pursuant to M.S.A. by regis- 9.2103 State mail; attached to said service tered Secretary was the affidavit of non-residency, of State signed deponent, copy attached; by this which is mailing, receipt for said as well as the return showing receipt the same to have therefor been deliv- Secretary July of State on ered 1970 are part hereof, together and made a attached hereto deponent’s accompanying said letter documents. 24, 1970, deponent July "6. That on did likewise serve copies Complaint upon true of the said Summons and Murphy Eugene and Murphy defendants Jeanne Marie registered mail at their last known address at Duncan, Kus, Jersey; receipt Ho Ho New that a for said hereto, mailing receipt is attached as well as a return showing therefor the same to have been delivered to the Eugene Múrphy Jeanne Marie on said 30, 1970, together July copy with a of the letter sent deponent. with said documents deponent sayeth "Further not.
"(s) Boyden M. Joel day me "Subscribed and sworn to before this 3rd August, 1970. "(s) Craig Linda Public,
"Notary County, Michigan Kent expires: April "My commission 1974” "AFFIDAVIT OF NON-RESIDENCY "State of
"SS.
"County of Kent sworn, being deposes Boyden, duly says
"Joel M. Marjo- attorney that he is the for Russell Schneider and *12 pending County in rie Schneider in a suit now Kent Circuit Court in which the said Russell Schneider and Marjorie plaintiffs and Jeanne Marie are 389 Opinion by T. E. Murphy Eugene Murphy among are the defend- ants, being Action file Civil No. 10310. "Deponent further states that defendants Jeanne Eugene Murphy Marie are now non-resi- dents of the state of and that their last known address is as follows:
"11 Duncan Kus, Jersey
"Ho Ho New deponent sayeth
"Further not.
"(s) Boyden Joel M. "Subscribed and sworn to before me this day 28th "(s) July, Craig 1970. Linda Public, "Notary "My Kent County, Michigan expires: April 14,
commission
1974”
plaintiffs’
reference
statutory
proof of
257.403;
service is MCLA
MSA 9.2103.
provides:
It
any
against
"Service of
person,
summons
action
a
who
the time of such service is a nonresident of this
state, growing
out of
accident or collision in which
person may
such
operating
have been involved while
a
upon
public
motor vehicle
highway
a
of this state or in
him
the
such
which a motor vehicle
involved while
or
implied,
secretary
personally
person
on such
with the same
of state as the true and
being operated
within this state.
public
owned
highway,
legal
himby
[*]
force as
[*]
his
may
[*]
lawful
”
consent,
may
be made
if
attorney
have been
served on
express
upon
It
permits
is clear that
this statute
upon
service
the Secretary
agent
of State as
a
nonresident
motorist
only
cases where
collision
occurs
Plopa
v Du-
upon
public
highway
this state.
Pre,
In respect, quoted this relied plaintiffs attempting as the means of to obtain defendants, over these dovetails with portion giving Michi- gan personal courts limited in cases guilty where the defendant of tortious conduct *13 Opinionby T.E. where the defendant Michigan, is the owner of a motor which involved in vehicle an accident in Michigan. 257.403;
MCLA MSA 9.2103 agrees also with 1963, 105.2(1), provides: GCR which Individuals, ".2 Substituted Service. Service of made, may be "(1) upon nonresident, an individual by service of a copy complaint a upon summons and employee, representative, agent, such
salesman or servant of the may state, defendant as be found within the by sending a copy complaint summons and a registered mail addressed to the defendant at his last address, known or”
But where the accident does not upon occur Michigan highway, the statute does purport not appoint Secretary State as the agent of the nonresident motorist. There being agent no to be state, found within the there is no basis for service by registered upon mail the defendants outside of state, quoted under rule. concept of constructive situs relied the Court Appeals has no basis authority.
The Court of Appeals reversed, should be costs to the defendant. J., did not sit in this case.
Levin,