The opinion of the court was delivered by: LORD
The defendant has filed this motion to dismiss. He states three reasons why it should be granted, namely:
2. Improper service of process; and
3. Failure to state a cause of action. We shall discuss them in that order.
The complaint alleges a claim to recover damages for severe and permanent injuries sustained by one of the plaintiffs, James W. Davis, a minor, while a passenger in an automobile driven by his father, the defendant's decedent, on June 10, 1952, in the Commonwealth of Pennsylvania. The decedent was killed instantly in the accident. The other plaintiff, Sue G. Davis, the widow of the decedent and mother of the minor-plaintiff, sues in her own right for damages sustained by reason of her minor son's injuries.
1. We will first consider the question of venue. Both plaintiffs are citizens and residents of Virginia. Defendant, Ralph W. Smith, administrator of the estate of George Maslin Davis, is a resident of Delaware and was appointed administrator c.t.a. of the decedent's estate on December 11, 1952, by the Register of Wills of Chester County, Pennsylvania, where the decedent was domiciled at the time of his death. The administrator has not been discharged from his official duties up to the present time.
Service of process was first made by the United States Marshal upon the defendant-administrator by serving a copy of the summons and complaint upon the administrator at his home in Delaware and by serving a copy of the summons and complaint upon the Secretary of the Commonwealth of Pennsylvania under the provisions of 20 P.S. § 320.307(b).
The defendant-administrator filed with the office of the Register of Wills of Chester County, Pennsylvania, an executed appointment of Carl E. Guether, Philadelphia, as agent and attorney-in-fact for him as administrator, and authorized service of any and all process against the said administrator upon his attorney-in-fact. On September 10, 1954, plaintiffs made an additional service of summons and complaint upon Carl E. Guether, as agent and attorney-in-fact for the defendant-administrator.
Where jurisdiction of the court is based on diversity of citizenship, as in the instant case, the situs of suit or venue is controlled by the provisions of § 1391, 28 U.S.C., as follows:
'(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside.'
The defense of improper venue is, of course, a personal privilege which may be waived by the defendant. Panhandle Eastern Pipe Co. v. Federal Power Commission, 1945, 324 U.S. 635, 65 S. Ct. 821, 89 L. Ed. 1241. Such waiver occurs whenever the party manifests an intent, express or implied, to forego this privilege. Where the court finds an 'act' by the defendant indicative of an intent to waive the privilege of venue, then the defendant will be precluded from asserting this defense.
The waiver in this case is predicated solely upon the affirmative act of the non-resident administrator in appointing an agent to accept service in Chester County, Pennsylvania. By this act, the administrator agrees to be sued in the courts of Pennsylvania, and this submission to judicial process is deemed to extend not only to the state courts, but also to the federal courts located within the state. Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 1939, 308 U.S. 165, 60 S. Ct. 153, 84 L. Ed. 167.
The defense available under Section 1391 is a federal privilege created by a federal statute as interpreted and construed by the federal courts. Ex parte Schollenberger, 1878, 96 U.S. 369, 24 L. Ed. 853. As such, it cannot be modified, destroyed, or expanded by the terms of any state statute. The waiver of Section 1391, predicated upon compliance with the state act, cannot be based upon the provisions and terms of the state act, but, on the contrary, springs from federal judicial interpretation of the effect and significance of the act of appointing the agent. The act of appointment is conclusive evidence of the non-resident administrator's intent to submit to suit and waive the defense of improper venue. Baltimore & Ohio Railroad Co. v. Harris, 1871, 12 Wall. 65, 20 L. Ed. 354; Lafayette Insurance Co. v. French, 1856, 18 How. 404, 15 L. Ed. 451.
The leading case on this issue is Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., supra. This case did not hold the state statute itself created waiver of venue. The result was based upon the defendant's voluntary 'act' in appointing an agent to accept service of process, which the court construed to be a submission to all judicial process and a consent by the foreign corporation to be sued in the New York courts, both state and federal. Cf. Robinson v. Coos Bay Pulp Corporation, 3 Cir., 1945, 147 F.2d 512. The crux of the matter in the present case was the defendant's appointment of an agent to accept service of process. The fact that the agent was appointed pursuant to the directive of the state statute was incidental. The submission to judicial process and the waiver of venue is just as complete, just as effective, and just as binding whether the appointment of an agent is pursuant to a statutory requirement or otherwise.
It appears that the defense of improper venue is one personal to the defendant, which he may waive, expressly or impliedly, either prior to or after the institution of suit. The appointment of an agent for acceptance of service of process by operation of a state statute solely, without an affirmative 'act' on the part of the defendant in appointing the agent, may not of and in itself constitute a waiver of venue, i.e., a binding indication of the defendant's willingness to be sued in that state. Where, however, as here, a defendant performs the affirmative 'act' and in fact actually appoints an agent to accept service of process, whether voluntarily or under the requirement of a local statute, under the Neirbo case such defendant has waived the personal defense of venue and is amenable to suit in the federal court in the state of appointment. The appointment of Carl E. Guether as agent and attorney-in-fact for Ralph W. Smith, administrator c.t.a. by the defendant is the same as the appointment of an agent for service of process made by the defendant in the Neirbo case, and as such, constitutes a waiver of improper venue.
In Olberding v. Illinois Central R. Co., Inc., 1953, 346 U.S. 338, 74 S. Ct. 83, the validity of the Neirbo case was reaffirmed where the non-resident individual or the foreign corporation has, in fact, appointed an agent for service of process. The court said, 346 U.S. at page 341, 74 S. Ct. at page 86:
'This conclusion is entirely loyal to the decision and reasoning of Neirbo Co v. Bethlehem (Shipbuilding) Corp., 308 U.S. 165, 60 S. Ct. 153, 84 L. Ed. 167. There the defendant, a Delaware Corporation, was sued by a non-resident of New York in the United States District Court for the Southern District of New York, and we found the venue requirements of what is now 28 U.S.C. § 1391(a), 28 U.S.C.A. § 1391(a) satisfied because Bethlehem had designated an agent in New York 'upon whom a summons may be served within the state of New York.' 308 U.S. at page 175, 60 S. Ct. at page 158, 84 L. Ed. 167. We held that this constituted an 'actual consent' to be sued in New York, not the less so because it was 'part of the bargain by which Bethlehem enjoys the business freedom of the State of New York'. Ibid. We further held, following Ex parte Schollenberger, 96 U.S. 369, 377, 24 L. Ed. 853, that this consent extended to all courts sitting in New York, both federal and state. Of course this doctrine would equally apply to an individual defendant in situations where a state may validly require the designation of an agent for service of process as a condition of carrying on activities within its borders, and such designation has in fact been made. See Kane v. New Jersey, 242 U.S. 160, 37 S. Ct. 30, 61 L. Ed. 222. But here no such designation was required or made, and hence the Neirbo case has no applicability.'
Clearly, the Olberding and Neirbo cases are entirely consistent. The different results arise solely because under the non-resident motorists statutes the 'appointment' of a statutory agent by the non-resident motorists is purely fictional and is not a voluntary act of consent; whereas, the actual appointment of an agent, whether by reason of the requirement of a local statute or otherwise, by a foreign corporation as in the Neirbo case, is an affirmative consent to be sued. As Mr. Justice Frankfurter points out, the doctrine of the Neirbo case is equally applicable to non-resident individual defendants.
Accordingly, the defendant, by appointment of Carl E. Guether as agent for the acceptance of service of process, waived the venue defense and is amenable to suit in this Court.
2. As to the defense of Improper Service, Rule 4(d) of the Federal Rules of Civil Procedure, 28 U.S.C., provides as follows:
'* * * Service shall be made as follows:
'(1) Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. (Emphasis added.)
'(7) Upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule, it is also sufficient if the summons and complaint are served in the manner prescribed by any statute of the United States or in the manner prescribed by the law of the state in which the service is made for the service of summons or other like process upon ...