SNYDER v. BEAM, 380 A.2d 1374 (Del.Super. 1977)

Superior Court of Delaware, New Castle.Submitted November 15, 1977.
Decided November 29, 1977.

Page 1375

Motion to Dismiss for Lack of Jurisdiction. Denied.

Carl A. Agostini of Roeberg Agostini, P. A., Wilmington, for plaintiff, Robert C. Snyder, Administrator for the Estate of Ella Hearn.

Richard H. Schliem, III, Wilmington, for plaintiff, Ethel Mae Webb.

Clifford B. Hearn, Jr., and Henry A. Heiman of Balick
Hearn, P. A., Wilmington, for defendants, James R. Carr and Joseph McCaffrey, doing business as Carr McCaffrey and Carr
McCaffrey, a partnership.

Frank J. Miller of Miller Foulk, Wilmington, for defendants, Ronald R. Beam and Harold R. Beam.

Mason E. Turner, Jr., of Prickett, Ward, Burt Sanders, Wilmington, for defendants, Carrie Hitchens and Anthony Hitchens.

WALSH, Judge.

These companion actions arose out of a multiple vehicle accident which occurred on August 13, 1974. Among the drivers named as defendants in both actions was Ronald R. Beam who was operating an automobile purportedly owned by his father, Harold Beam. Both complaints allege that, at the time of the accident, Ronald R. Beam was the agent or employee of Carr and McCaffrey, a partnership, and was engaged in the conduct of his employer’s business. Under the principle of respondeat superior, plaintiffs seek to hold Carr and McCaffrey liable for the alleged negligence of their employee, Ronald Beam.

Carr and McCaffrey do not reside or have an office in the State of Delaware, and it is not claimed that they have any ownership interest in the automobile involved in the collision. Defendants assert, therefore, that they are not subject to service of process under the Delaware Nonresident Motorist Statute, 10 Del. C. § 3112, because they are not owners, operators or drivers within the purview of subsection (a) of the statute.[1] Accordingly, they have moved to dismiss the action against them on the ground that the Court lacks jurisdiction over their persons. Since both actions involve the common question of jurisdiction, they have been consolidated for disposition.

The precise issue is whether the term “operator”, as used in 10 Del. C. § 3112,

Page 1376

includes a nonresident employer whose employee or agent is involved in a motor vehicle accident on a Delaware roadway while acting in the course of the employer’s business but driving a vehicle not owned by the employer. If the statute can be so construed, the nonresident employer is properly subject to constructive service of process.

This question is apparently one of first impression in this State. The decisional and statutory trend in other jurisdictions bespeaks a tendency to uphold such service. In Eckman v. Baker,
3rd Cir., 224 F.2d 954 (1955), the Third Circuit interpreted Pennsylvania’s Long Arm Statute to include service upon an out-of-state employer. The Pennsylvania law interpreted i Eckman closely resembled the present Delaware statute.[2] In its determination of jurisdiction, the Court declined to follow four Pennsylvania Court of Common Pleas’ decisions holding to the contrary. But the Pennsylvania legislature, in deciding to clarify the state of the law, later amended the statute to expressly comport with the Eckman decision, thus indicating that the broader reading of the statute was originally intended. Act of Nov. 10, 1959, P.L. 1459 § 1, amending 75 Penna.Stat.Ann. § 120 (presently codified at 75 Penna.Stat.Ann. § 6701, et seq.) See, Care v. Fox Deluxe Foods, Inc., M.D.Pa., 185 F.Supp. 523
(1960).

In arguing for dismissal the defendants here have placed great reliance on Wallace v. Smith, N.Y.Sup., 238 App. Div. 599, 265 N.Y.S. 253 (1933) and Cody v. Francis L. Schwarz, Inc.,
S.D.Ohio, 152 F.Supp. 379 (1957). The Court does not find those authorities persuasive. The New York statute[3] interpreted i Wallace v. Smith, supra, was more restrictive than the present Delaware statute. It specifically referred to the acts “in which such nonresident may be involved while operating a motor vehicle on such a public highway” thus indicating that the term “operated” was intended to mean a personal act of manual control.

It is noteworthy that New York subsequently amended its Long Arm Statute to include service upon nonresidents who have vehicles used or operated in that State in the course of business, regardless of whether the nonresident owns the vehicle. N.Y. Vehicle and Traffic Law § 253 (McKinney 1970). See, De Concilius v. Lloyd A. Fry Roofing Co., N.Y.Sup., 34 Misc.2d 430, 226 N.Y.S.2d 216 (1962).

Cody v. Francis L. Schwarz, Inc., supra, involved the interpretation of a Long Arm Statute similar to Delaware’s[4]
under a fact pattern nearly identical to the present case. There, the Federal District Court quashed

Page 1377

the service of process. While the case does support the defendants’ position, it does not appear that Cody currently represents the law of Ohio. In a later opinion, an Ohio Common Pleas Court expressly rejected the holding in Cody. Tipton v. Fleet Maintenance Company, Ohio Com.Pl., 142 N.E.2d 882 (1957). Subsequently, the Federal District Court for the Northern District of Ohio also rejected Cody, and adopted the holding set forth in Tipton, supra. Weaver v. Winn Dixie Stores, N.D.Ohio, 160 F.Supp. 621 (1958). In Weaver, the Court noted:

“The legislature surely did not intend to be more liberal regarding service upon the agent than upon the principal. If both were present in court, liability would be equal as to both, and there is no reason why the principal should not be equally subject to service, just as he is equally subject to liability.” 160 F.Supp. at 623.

That rationale applies with equal force to the Delaware statute.

This Court is of the opinion that the term “operator” in § 3112(a) can and should be construed to include an employer who is having a vehicle driven on the roadways of Delaware by his employee even though the employer does not own the vehicle. Such a position is in keeping with the purpose of the Delaware Nonresident Motorist Statute which is to provide a single forum for litigation of such claims and thereby avoid the burden of having to pursue a tortfeasor to his place of domicile. Beck v. Lund’s Fisheries, Inc., Del.Supr., 3 Storey 45, 164 A.2d 583
(1960). While earlier Delaware decisions have not given such a broad meaning to the term “operator” none of those decisions involved the precise issue decided here. Cf. McDuell v. State,
Del.Supr., 231 A.2d 265 (1967); State v. Pritchett, Del.Super., 3 Storey 583, 173 A.2d 886 (1961); Ramirez v. Rackley,
Del.Super., 6 Terry 161, 70 A.2d 18 (1949).

For the reasons stated, the motion of defendants Carr and McCaffrey to dismiss the actions against them for lack of jurisdiction is denied.

IT IS SO ORDERED.