Zacharias v. Ippen

¶4PICKETT, Circuit Judge.

¶5This action grows out of the use and operation of an automobile on a highway within the boundaries of Yellowstone National Park, Wyoming. The complaint alleged that plaintiffs Zacharias were residents of Pennsylvania and that the defendant Ippen was a resident of North Carolina. Service was obtained on the defendant by serving the Secretary of State of Wyoming as provided by the Wyoming non-resident motorist statute, Section 1-52, Wyo.Stat., 1957.1 The trial court quashed the service of summons and dismissed the complaint for lack of venue. On appeal, from the record before it, this court affirmed on the ground that the requisite diversity of citizenship as contemplated by 28 U.S.C.. § 1391(a) did not exist.

¶6A supplemental record filed with a petition for rehearing discloses that when the motion to quash the service of summons and dismiss the complaint was-heard, the plaintiffs sought to amend their complaint to allege that Ippen was an alien and subject to be sued in any district in the United States as provided by 28 U.S.C. § 1391(d). In view of the present record, the court has reconsidered its former opinion and it is hereby withdrawn.

¶7*446No one contends that the portion of Yellowstone National Park where the -accident occurred is not within the territorial boundaries of the State of Wyoming. Had Ippen been found within the Park when this action was brought, valid personal service could have been made •upon her therein by virtue of the Act of Admission of the State of Wyoming.2 .'Since it is now conceded that Ippen is -an alien -and as such subject to suit in any district, the sole remaining question is whether service of process may 'be made under the Wyoming non-resident motorist statute in actions arising out •of the operation of motor vehicles on the streets and highways of Yellowstone 'National Park.

¶8Like Wyoming, most states have enacted statutes providing for substituted service of process to afford redress to •persons injured within the state as a .result of the operation of a motor ve'hiele therein by a non-resident. The "validity of the Wyoming statute is not ■questioned here.3 It has been held that statutes which provide that constructive service may be obtained upon non-resi•dents using “the public highways” or '“highways of the state” are not broad ■enough to permit such service when the ■cause of action arose from the use of a private road or a highway within areas •under the exclusive jurisdiction of the United States and not open to the public. O’Sullivan v. Brown, 5 Cir., 171 F.2d 199; Myers v. Vanduzee, D.C.N.D.Ala., 202 F.Supp. 878; Rilling v. Jones, D.C.Md., 130 F.Supp. 834; Camden v. Harris, D.C.W.D.Ark., 109 F.Supp. 311; 8 Am.Jur.2d Automobiles and Highway Traffic, § 862; Anno. 73 A.L.R.2d 1351; Anno. 148 A.L.R. 1217. However, where broader language, such as that in the Wyoming statute, does not restrict its application to the use of public highways or streets, the service has been upheld when the cause of action arose out of the use and operation of a motor vehicle over or upon any road or street “within” the state, including private roads and roads within military reservations. Cantrell v. Haas, D.C.W.D.N.Car., 161 F.Supp. 433; Kohanovich v. Youree, 1 Storey 440, 51 Del. 440, 147 A.2d 655, 73 A.L.R.2d 1347; Schefke v. Superior Court, 136 Cal.App.2d 715, 289 P.2d 542; State ex rel. Mohr v. District Court, 138 Mont. 452, 357 P.2d 891; Paduchik v. Mikoff, 158 Ohio St. 533, 110 N.E.2d 562; Anno. 73 A.L.R.2d 1351 and previous annos.; 8 Am.Jur. 2d Automobiles and Highway Traffic, § 862.

¶9Although the highways and streets within Yellowstone National Park are not constructed or maintained by the State of Wyoming, and the state has no regulatory jurisdiction over them, still the area is geographically within the State of Wyoming. Under the broad terms of the Wyoming Statute, service may be made on non-resident defendants when the cause of action arises out of the operation of motor vehicles “ … over or upon any street or highway within the State … Clearly, that language is broad enough to include the streets and highways of Yellowstone National Park.

¶10Reversed and remanded with instructions to reinstate the complaint.