Schneider v. Linkfield

T. E. Brennan, J.

(dissenting). I cannot agree that the Michigan long-arm statute is long enough to reach these defendants.

The majority opinion states:

"It is not disputed that at the time of the accident, defendants owned personal property which was titled in Michigan but physically located in Indiana. Plaintiffs have pointed out that defendants had the following contact with the State of Michigan.
"(1) The Murphys were residents of Michigan.
"(2) The Murphy vehicle was licensed by the State of Michigan.

"(3) The Murphy vehicle was titled in the State of Michigan.

*619"(4) Defendant, Jeanne Murphy, the driver of the car, was a driver licensed by the State of Michigan.”

None of these four "contacts” are relevant.

It is conceded that the Murphys were residents of Michigan at the time of the accident. The licensing and titling of their vehicle in Michigan were natural incidents of that residence. So, too, the licensing of the driver of the defendants’ vehicle in Michigan was incident to the residence of Jeanne Murphy in Michigan at the time of the accident.

The Murphys were not residents of Michigan at the time service of process was attempted in this case.

They were nonresidents, just as surely as if they had never lived in Michigan.

The majority tacitly concedes the irrelevance of the defendants’ former residence in Michigan. They bottom the claimed jurisdiction upon the long-arm statute, MCLA 600.705(3); MSA 27A.705(3). That statute has to do solely with circumstances under which Michigan courts may exert limited personal jurisdiction over nonresidents.

If the defendants were residents of Michigan at the time of service of process, or, even being nonresidents, if they were in fact personally served with process while physically within the State of Michigan, there would be no need to rely upon the long-arm statute. In such case, the Michigan courts would not have mere limited personal jurisdiction, it would have general personal jurisdiction. MCLA 600.701; MSA 27A.701.

But the defendants were not Michigan residents at the time of service of process. Sometime between the happening of the accident on May 11, *6201968, and the commencement of the action on May 7,1970, the Murphys moved to New Jersey.

This fact was not known to the plaintiffs until after the action was commenced.

On August 3, 1970, plaintiffs filed in the Kent County Circuit Court a proof of service and an affidavit of nonresidency:

"PROOF OF SERVICE AND AFFIDAVIT OF NON-RESIDENCY
"(Filed August 3, 1970)
"PROOF OF SERVICE
"State of Michigan
"SS
"County of Kent
"Joel M. Boyden, being duly sworn, deposes and says:
"1. That he is one of the attorneys for the plaintiffs in the above captioned cause; that on May 9, 1970, he placed in the hands of the sheriff of Oakland County, Michigan, copies of the Summons and Complaint in this cause for service upon defendants Eugene Murphy and Jeanne Marie Murphy; that a copy of the deponent’s receipt therefor is attached' hereto and made a part of this affidavit.
"2. That the Summons and Complaint heretofore placed in the hands of the sheriff of Oakland County on May 9, 1970 have remained in the hands of said sheriff for service, continuously since that date and up to the present time.
"3. That, upon being apprised by the sheriff of Oakland County that defendants Eugene and Jeanne Marie Murphy were no longer residents at the last known address in Michigan, plaintiffs did attempt to ascertain their present address.
"4. That plaintiffs have now learned that defendants Eugene and Jeanne Marie Murphy are now residents of the state of New Jersey, and that their last known address in New Jersey is 11 Duncan, Ho Ho Kus, New Jersey, and that this is the last known and non-resident address of these defendants.
*621"5. That on July 24, 1970, deponent did serve a true copy of the Summons and Complaint in this cause upon the defendants Eugene Murphy and Jeanne Marie Murphy through the office of the Secretary of State of the State of Michigan pursuant to M.S.A. § 9.2103 by registered mail; that attached to said service upon the Secretary of State was the affidavit of non-residency, signed by this deponent, a copy of which is attached; that the receipt for said mailing, as well as the return receipt therefor showing the same to have been delivered to the Secretary of State on July 29, 1970 are attached hereto and made a part hereof, together with deponent’s letter accompanying said documents.
"6. That on July 24, 1970, deponent did likewise serve true copies of the said Summons and Complaint upon defendants Jeanne Marie Murphy and Eugene Murphy by registered mail at their last known address at 11 Duncan, Ho Ho Kus, New Jersey; that a receipt for said mailing is attached hereto, as well as a return receipt therefor showing the same to have been delivered to the said Jeanne Marie Múrphy and Eugene Murphy on July 30, 1970, together with a copy of the letter sent with said documents by deponent.
"Further deponent sayeth not.
"(s) Joel M. Boyden
"Subscribed and sworn to before me this 3rd day of August, 1970.
"(s) Linda Craig
"Notary Public, Kent County, Michigan
"My commission expires: April 14, 1974”
"AFFIDAVIT OF NON-RESIDENCY
"State of Michigan
"SS.
"County of Kent
"Joel M. Boyden, being duly sworn, deposes and says that he is the attorney for Russell Schneider and Marjorie Schneider in a suit now pending in Kent County Circuit Court in which the said Russell Schneider and Marjorie Schneider are plaintiffs and Jeanne Marie *622Murphy and Eugene Murphy are among the defendants, the file being Civil Action No. 10310.
"Deponent further states that defendants Jeanne Marie Murphy and Eugene Murphy are now non-residents of the state of Michigan and that their last known address is as follows:
"11 Duncan
"Ho Ho Kus, New Jersey
"Further deponent sayeth not.
"(s) Joel M. Boyden
"Subscribed and sworn to before me this 28th day of July, 1970. "(s) Linda Craig
"Notary Public, Kent County, Michigan
"My commission expires: April 14, 1974”

The statutory reference in plaintiffs’ proof of service is MCLA 257.403; MSA 9.2103. It provides:

"Service of summons in any action against a person, who at the time of such service is a nonresident of this state, growing out of any accident or collision in which such person may have been involved while operating a motor vehicle upon a public highway of this state or in which a motor vehicle owned by him may have been involved while being operated with his consent, express or implied, on such public highway, may be made upon the secretary of state as the true and lawful attorney of such person with the same legal force as if served on him personally within this state. * * * ”

It is clear that this statute permits service upon the Secretary of State as agent for a nonresident motorist only in cases where the collision occurs upon a public highway of this state. Plopa v DuPre, 327 Mich 660 (1950).

In this respect, the quoted statute, relied upon by plaintiffs as the means of attempting to obtain jurisdiction over these defendants, dovetails with that portion of the long-arm statute giving Michigan courts limited personal jurisdiction in cases where the defendant is guilty of tortious conduct *623in Michigan, or where the defendant is the owner of a motor vehicle which is involved in an accident in Michigan.

MCLA 257.403; MSA 9.2103 also agrees with GCR 1963, 105.2(1), which provides:

".2 Individuals, Substituted Service. Service of process may be made,
"(1) upon an individual nonresident, by service of a summons and a copy of the complaint upon such agent, employee, representative, salesman or servant of the defendant as may be found within the state, and by sending a summons and a copy of the complaint by registered mail addressed to the defendant at his last known address, or”

But where the accident does not occur upon a Michigan highway, the statute does not purport to appoint the Secretary of State as the agent of the nonresident motorist. There being no agent to be found within the state, there is no basis for service by registered mail upon the defendants outside of the state, under the quoted rule.

The concept of constructive situs relied upon by the Court of Appeals has no basis in authority.

The Court of Appeals should be reversed, with costs to the defendant.

Levin, J., did not sit in this case.