under the Non-Resident Motorist Act of Alabama, but first it must be determined whether these nonresident plaintiffs could have brought this suit in Alabama and received the benefits of that Act.
No Alabama decision has been called to our attention refusing the benefits of that State's Non-Resident Motorist Act to a nonresident plaintiff. In absence of an interpretative state court decision this court must ascertain the Alabama law 'from all the available data.' West et al. v. American Telephone & Telegraph Co., 1940, 311 U.S. 223, 237, 61 S. Ct. 179, 183, 85 L. Ed. 139; Stentor Electric Mfg. Co., Inc. v. Klaxon Co., 3 Cir., 1942, 125 F.2d 820.
As a general rule residence within a state is not a prerequisite for the use of its courts. Primarily, nonresident motorist acts were enacted for the protection of residents of the enacting states, but there is no compelling reason to limit the benefits of the acts to residents in absence of an express limitation to that effect in the act itself. There are many jurisdictions so holding.
It is the opinion of this court that the cases, jurisdictions and authorities which hold that the residence of plaintiff is immaterial state the law correctly, and that the Alabama courts would so hold. Therefore, plaintiffs could have maintained their action in Alabama if they had brought it within the one year period.
Turning now to the question whether the defendants were amenable to service, under the provisions of the Alabama Non-Resident Motorist Act, again, the law of that state must be ascertained.
Since the defendant, William A. Shaffer, was the owner of the car operated by his alleged agent Rollans, by the specific terms of the Act he is amenable to the substituted service therein provided. Whether the nonresident partnership is amenable to such service is a more difficult question and it does not appear that the courts of Alabama have decided it.
In Dealer's Transport Co. v. Reese, 5 Cir., 1943, 138 F.2d 638, 640, an Illinois corporation, by its employee, operated a truck owned by the United States Army on the public highways of Alabama, where it was involved in a collision. An action was brought against the corporation and the employee driver. Substituted service was obtained upon the corporation by virtue of the Non-Resident Motorist Act under discussion. The Court of Appeals upheld this service under the Alabama statute, stating that 'The test is operation- not ownership.' It construed the confusing disjunctive phrase relating to '* * * operation * * * of a motor vehicle owned by any nonresident' as parenthetical, and not in limitation of the first phrase relating to 'The operation by a nonresident of a motor vehicle on a public highway in this state.' The court does not limit the meaning of the phrase 'operation by a nonresident' to personal physical operation, but realistically regards corporations as included in the word 'nonresident.' Surely a nonresident partnership would likewise be included.
Like a corporation, a partnership can operate a car only by an employee or agent, which would include a partner. Construing the amended complaint on this phase of the case in the most favorable light for the plaintiffs, Rollans, the driver, must be regarded as an agent of the partnership and driving on its business within the scope of his authority at the time of the collision at the personal direction of the partner, William A. Shaffer. Thus, by analogy to Dealer's Transport Co. v. Reese, the nonresident partnership, by agent, operated a motor vehicle owned by another upon Alabama's highways and is amenable to constructive service under the interpretation given to the statute by the Court of Appeals for the Fifth Circuit. In the opinion of this court that interpretation effects the purpose for which the statute was enacted, and would be so interpreted by the courts of Alabama.
Summarizing, the plaintiffs could have maintained a timely action in Alabama where the collision occurred, against these nonresident defendants. Since both of the defendants are amenable to substituted service of process under the Alabama Non-Resident Motorist Act, the Alabama Statute of Limitations was not tolled by their absence from that state and residence in Pennsylvania. Applying the Pennsylvania 'borrowing' Act of 1895, this action, brought more than one year after the cause of action arose, is barred by the Alabama Statute of Limitations.