McDONALD v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO

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District Court of Appeal, First District, Division 1, California.

McDONALD v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO et al.*

Civ. 16025.

Decided: April 22, 1954

Keith, Creede & Sedgwick, San Francisco, for petitioner. Fitz-Gerald Ames, Sr., San Francisco, for respondent.

This is a petition for a writ of prohibition predicated upon the theory that the Superior Court did not secure jurisdiction over Thornton McDonald, a nonresident, by service on the Director of Motor Vehicles or by personal service outside the state, made in a personal injury action brought by Christopher Miesen and his wife against petitioner and others.

So far as pertinent here, the complaint in the personal injury action alleges that Christopher Miesen and/or his son-in-law, Richard Fetters, in Redwood City, rented a truck from Bill Bolich and Chuck Lundegard, doing business as the B & C Texaco Service, for the express purpose of moving some furniture from Redwood City to San Francisco. The particular truck rented to plaintiff by Bolich and Lundegard, was owned by petitioner Thornton McDonald, who does business as the Golden Gate Truck Rental Co. and the West Coast Truck Rental Co., and who is a resident of Oregon. McDonald owns a large fleet of trucks, many of which he rents to persons or companies in California. Bolich and Lundegard regularly rent to the public trucks owned by McDonald.

The truck here involved was loaded with furniture by Miesen and Fetters in Redwood City and then driven by them to San Francisco, where it was parked in front of Miesen's residence, half on the sidewalk and half on the street, preparatory to unloading. While untying a rope affixed to a rack on a stake attached to the bed of the truck, the rack gave way and Miesen fell backwards off the truck, hitting his head on the pavement and receiving the serious injuries alleged in the complaint. The negligence alleged is that there existed a latent defendant in the body of the rented truck in that the ‘upper rack affixed to stakes on the right-hand side of the bed of said truck was rotten, deteriorated, weak, and not securely or firmly bolted or fastened in position’ that was ‘inherently dangerous and reasonably certain to place life and limb in peril’; that all defendants, including petitioner, ‘knew of the existence of said structural defect’ and did not repair or replace it or notify plaintiff of its existence; that this defect was the proximate cause of the accident.

Named as defendants in the complaint are the Texas Company, Texaco Stations, Bill Bolich and Chuck Lundegard, doing business as B & C Texaco Service, and Thornton McDonald, individually and doing business as the Golden Gate Truck Rental Co., and/or West Coast Truck Rental Co. The only defendant involved in the present proceeding is Thornton McDonald, a resident of Oregon. Service was attempted on him by serving the Director of Motor Vehicles as provided in section 404(a) of the Vehicle Code. McDonald was also personally served in Oregon. All procedural steps required by the code section were followed. McDonald appeared specially in the trial court to challenge the jurisdiction of that court over him. The trial court determined that the service was valid, whereupon McDonald filed this petition for a writ of prohibition.

The sole question presented is whether section 404(a) is applicable to McDonald. That section provides: ‘The acceptance by a nonresident of the rights and privileges conferred upon him by this code or any use of the highways of this State as evidenced by the operation by himself or agent of a motor vehicle upon the highways of this State or in the event such nonresident is the owner of a motor vehicle then by the operation of such vehicle upon the highways of this State by any person with his express or implied permission, is equivalent to an appointment by such nonresident of the director or his successor in office to be his true and lawful attorneys upon whom may be served all lawful processes in any action or proceedings against said nonresident operator or nonresident owner growing out of any accident or collision resulting from the operation of any motor vehicle upon the highways of this State by himself or agent.’

McDonald undoubtedly accepted ‘the rights and privileges conferred upon him by this code,’ and equally clear is the fact that the vehicle was operated in the state ‘with his express or implied permission’ within the meaning of the first part of the section. But by the express language of the last clause of the section such acceptance of rights and such operation amounts to the appointment of the Director for service only ‘in any action * * * growing out of any accident * * * resulting from the operation of any motor vehicle upon the highways of this State by himself or agent.’ The two basic questions are whether the injuries here alleged grew out of an accident ‘resulting from the operation’ of the truck ‘upon the highways of this State’, and whether the truck was then being operated by an ‘agent’ of McDonald within the meaning of section 404(a).

Did the accident result from the ‘operation’ of the vehicle ‘upon the highways of this State’? The terms ‘operate,’ ‘operator’ and ‘operation’ appear frequently in the Motor Vehicle Act. Obviously, the proper meaning of any of these terms depends upon the context in which it appears, and the purpose of the particular section. Generally speaking, the terms have been broadly interpreted so as to include more than the mere physical movement of the vehicle, and to include others than those in physical control of the vehicle. See, generally, Bosse v. Marye, 80 Cal.App. 109, 250 P. 693; Pontius v. McLain, 113 Cal.App. 452, 298 P. 541; Union Tank Line Co. v. Richardson, 183 Cal. 409, 191 P. 697. The terms should be broadly interpreted. But no matter how broadly the term ‘operation’ be interpreted, it does not include an accident occurring because of a defective bracket while unloading the truck and while the truck is parked. No case interpreting section 404(a) in this respect has been called to our attention. But statutes similar to that section have been adopted in several states. Whenever the problem has arisen the courts, without exception, have held that such statutes do not apply to such a factual situation. In Brown v. Hertz Drivurself Stations, 203 Misc. 728, 116 N.Y.S.2d 412, 413, a truck was rented in Philadelphia for the purpose of hauling furniture into New York City. The truck was defective in that a metal ledge in its body was so constructed as to create a trap. While plaintiff in New York was parked and engaged in the act of shifting the furniture already loaded in order to place more furniture in the truck, or while unloading, he was injured. The pertinent New York statute, Vehicle and Traffic Law, McKinney's Consol.Laws, c. 71, § 52, provided that ‘the operation’ in New York of an out-of-state vehicle is equivalent to the appointment of the Secretary of State for service in any action ‘growing out of any accident’ in which the vehicle is involved ‘while being operated’ in New York. The court held that the vehicle was not being ‘operated’ within the meaning of this statute. The court stated that in enacting the statute, 116 N.Y.S.2d at page 414:

‘it was intended by the legislature to restrict its application to those instances involving the use of the public highways. In fact the constitutionality of the statute is predicated on such use. * * *

‘The facts presented in the instant case indicate that the accident complained of has no relation to the use of the public highway.’ See, also, Finn v. Schreiber, D.C., 35 F.Supp. 638, also interpreting the New York statute in a similar fashion.

The Supreme Court of Tennessee also concluded that such statute must be limited to injuries in some way connected with the use of the highways of the state. Ellis v. Georgia Marble Co., 191 Tenn. 229, 232 S.W.2d 45, 47. That case involved a statute providing for such service in any action “arising out of accident or injury occurring in this state in which such vehicle is involved'.' Code, § 8671. The defendant, a resident of Georgia, shipped marble slabs by truck to plaintiff's employer in Tennessee. Plaintiff was assisting in unloading the truck in Tennessee when a slab of marble, which had been negligently stacked by defendant and his employees, fell and injured him. The court held that the negligent act was in no way connected with the use of the highways of Tennessee, or with the operation of the truck in that state, and that the statute had no application.

In coming to this conclusion the Tennessee Supreme Court quoted and relied upon Brauer Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569, 50 N.E.2d 836, 842, 148 A.L.R. 1208, a case also in point, involving an Illinois statute providing that “the use and operation” by a nonresident of a motor vehicle in Illinois was equivalent to appointing the Secretary of State as agent for service “in any action or proceeding against him, growing out of such use or resulting in damage or loss to person or property.” S.H.A. ch. 95 1/212, § 23. The statute was held inapplicable to a situation where a nonresident was delivering goods in Illinois by truck, and the plaintiff was injured while helping to unload the truck as a result of the negligence of defendant's nonresident employee. It was held that the accident did not arise out of the use and operation of a motor vehicle upon the highways of Illinois, and for that reason the statute was not applicable.

These cases, and none is cited to the contrary, indicate that the accident here involved did not grow out of or result from the ‘operation’ of the truck ‘upon the highways of this State’. As alleged, it occurred by reason of the negligence of the nonresident petitioner or of his resident agents. All of the claimed negligent acts of misfeasance or nonfeasance occurred before the truck was rented.

It should also be noted that the statute only applies to actions growing out of accidents resulting from the operation of the vehicle in this state by the nonresident or his ‘agent.’ The history of this section indicates that this limitation to actions involving the ‘agent’ of the nonresident excludes cases, such as the instant one, where the vehicle is being operated with the consent of the nonresident but not by his ‘agent.’

The principle involved in section 404(a) of the Vehicle Code first came into our law in 1931 by the addition of section 47 1/212 to the then California Vehicle Act. Stats. of 1931, Chap. 1026, p. 2099, at p. 2107. As then enacted, the statute provided that: ‘The acceptance by a nonresident of the rights and privileges' conferred by certain sections of the then existing act ‘as evidenced by the operation by himself or agent of a motor vehicle thereunder, or the operation by such person, by himself or his agent, of a motor vehicle on a public highway in this state otherwise’ than as permitted by certain sections of then existing law ‘or in the event the nonresident is the owner of a motor vehicle then the operation of such vehicle by such nonresident by himself or by any other person with the express or implied permission of the owner’ shall be deemed the equivalent of the appointment of the head of the motor vehicle department as his agent for service in any action ‘growing out of an accident or any collision in which such person or his agent or any other person operating with the express or implied permission of a nonresident owner of a motor vehicle may be involved, while operating a motor vehicle on any said public highway * * *.’ It will be noted that this section, by its express terms, included not only the agent of the owner, but also included a person operating the vehicle with the express or implied permission of the owner.

The vehicle laws were codified in 1935, and section 47 1/212 became section 404(a) of the Vehicle Code. Stats. of 1935, Chap. 27, p. 93, at p. 154. This transfer was accomplished with only one substantial change in the wording of the old section. In the last portion of the section the words ‘or any other person operating with the express or implied permission of a nonresident owner of a motor vehicle’ were deleted and the present language adopted. The present language, it will be remembered, is that such substituted service is permitted in any action ‘growing out of any accident * * * resulting from the operation of any motor vehicle upon the highways of this State by himself or agent.’ This deletion was made although as originally drafted by the Code Commission the deleted portion was in the proposed bill. The section, although amended several times in other respects since 1935, has not been amended in the portions of the section here involved.

This deletion would appear to be of some significance. Now the nonresident owner may be so served only where the accident occurs while the nonresident owner is himself operating the vehicle for does so through an agent. Under the original statute not only were agents included, but such service was permitted when the vehicle was being operated by any person operating ‘with the express or implied permission’ of the nonresident. In the instant case while it is alleged that Bill Bolich and Chuck Lundegard were the agents of McDonald in renting the truck, obviously Miesen or his son-in-law were not agents of McDonald in operating it.

Because this accident did not result ‘from the operation’ of the truck ‘upon the highways of this State’, or did not result from such operation by an ‘agent’ of petitioner, the service here was not permitted by section 404(a). It was, therefore, ineffective, and should have been quashed.

Let the peremptory writ of prohibition issue as prayed.

PETERS, Presiding Justice.

BRAY and FRED B. WOOD, JJ., concur.