Abrams v. Stone
| Decision Date | 24 September 1957 |
| Citation | 315 P.2d 453,154 Cal.App.2d 33 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Evelyn ABRAMS and Emil Abrams, Plaintiffs and Appellants, v. Herbert Leonard STONE, Max Hager, Doe Corporation, a corporation, John Doe and Jane Doe, Defendants. Herbert Leonard Stone, Respondent. Civ. 22292. |
Samuel A. Rosenthal, Joseph Ostrow, Los Angeles, for appellants.
Fitzgerald, Cozy, Gyger & Nelson, Los Angeles, Hugh J. Haferkamp, W. Arcadia, for respondent.
Plaintiffs instituted this action to recover damages for bodily injuries allegedly suffered by plaintiff Evelyn Abrams, and for consequent loss of consortium by plaintiff Emil Abrams, arising out of an automobile accident which occurred in Los Angeles County on July 31, 1955.
On July 6, 1956, plaintiffs filed their action in the Superior Court of Los Angeles County against defendants Max Hager, the driver of the automobile in which plaintiff Evelyn Abrams was riding as a passenger or guest, and defendant Herbert Leonard Stone (hereinafter referred to as respondent), the driver of the other automobile involved in the collision. Defendant Max Hager filed his answer to the complaint on August 20, 1957.
On July 17, 1956, respondent Stone was personally served with a copy of the complaint and summons at his residence in Scottsdale, Arizona, by a deputy sheriff of Maricopa County, Arizona. It is conceded that at the time of the accident and for approximately eight years prior thereto, respondent had been a resident of the State of California. That on June 24, 1956, approximately ten months after the accident occurred, and about eleven days before the complaint herein was filed, respondent made a bona fide change of residence and domicile from California to the state of Arizona.
On September 13, 1956, respondent filed a notice of special appearance and motion to quash summons and service thereof upon him. The motion was grounded on the claim that the service of process upon respondent was null and void, and that the court had no jurisdiction over him because, while he was a resident of the State of California at the time of the accident sued upon, he was absent from this state at the time of service of process upon him. That such service was further invalid and conferred no jurisdiction upon the courts of California because while respondent was a resident of this state at the time of the accident, it occurred prior to the effective date of the 1955 Vehicle Code amendments to Section 404, to-wit, sections 404.1, 404.2, and 404.3. Respondent further contends that the legislative intent in enacting Vehicle Code sections 404.1 and 404.2 was not retrospective and did not contemplate the inclusion of causes of action arising prior to the effective date of the statutes, and finally, that if the legislative intent was that Vehicle Code sections 404.1, 404.2 and 404.3 should be retrospective, said sections are unconstitutional and in derogation of the rights and liberties of respondent, under both the Constitutions of the United States and the State of California (14th Amendment to the Constitution of the United States; Art. I, Sec. 13, Constitution of California). The effective dates of the foregoing Vehicle Code amendments to section 404, to-wit, sections 404.1, 404.2, 404.3 and 404.4, was September 7, 1955.
By its order, the court granted respondent's motion to quash summons and service thereof upon him. From such order plaintiffs prosecute this appeal.
The pertinent sections of the Vehicle Code affecting determination of the issues presented on this appeal are as follows:
'404.2. Service of Process on Person Accepting or Retaining Operator's or Chauffeur's License. The acceptance by a resident of this State, after the effective date of this section, of an operator's or chauffeur's license issued pursuant to the provisions of this code, shall constitute the consent of such person that personal service of summons may be made upon him at any place where he may be found and whether or not he is then a resident of this State, with the same force and effect as if served within the State in any action brought in the courts of this State upon a cause of action arising in this State out of his driving a motor vehicle upon any public road or highway in this State.
'The retention of an operator's or chauffeur's license issued under the provisions of this Code by a resident of this State for more than 180 days after the effective date of this section shall likewise operate as a consent of the licensed holder to the service of summons as hereinbefore provided for as to a person accepting an operator's or chauffeurs' license after said effective date.' (Emphasis added.)
The historical background of the foregoing amendments to the Vehicle Code was set forth in the case of Chesin v. Superior Court, 142 Cal.App.2d 360, 363, 364, 298 P.2d 593. In the case jsut cited the facts are analogous to those presented in the proceeding now before us except that in the Chesin case the defendant became a resident of the State of Arizona one year prior to the effective date of the foregoing legislative amendments, while in the instant case, although the accident occurred prior to the effective date of the amendments, the latter were in full force and effect for some ten months prior to the time respondent departed from the State of California. In the Chesin case, supra, we held that the acceptance of a certificate of ownership or registration or the acceptance of an operator's or chauffeur's license before the effective date of the amendments did not constitute a consent to the service of process upon the owner or registrant of the vehicle or upon a person accepting an operator's or chauffeur's license. However, the court was not there concerned as we are, with the question of the retention by a resident of this state of an operator's or chauffeur's license for more than six months after the effective date of section 404.2.
It is conceded that respondent herein was a resident of this state on the effective date of the amendments, September 7, 1955, and continued as such resident for some nine months thereafter. In the case of Chesin v. Superior Court, supra, 142 Cal.App.2d at page 365, 298 P.2d at page 596, we said: 'Certainly the section does not purport to be retrospective, so as to make the acceptance of registration before the enactment of the statute a consent to the service of process upon the owner or registrant of the automobile * * *.' Since the accident with which we are here concerned occurred July 31, 1955, prior to the effective date of the amendment (Section 404.1), and assuming respondent was then the possessor of a certificate of registration thereof, such possession would not amount to a consent to the service of process upon him at 'any place where he may be found, whether or not he is then a resident of this state'. Appellants having failed to establish that respondent, subsequent to the effective date of the statute, accepted a renewal of any certificate of ownership or registration, it follows that insofar as Section 404.1 is concerned, appellants failed to establish one of the basic elements necessary to justify service under the provisions of said section.
We are however confronted with the conceded fact that respondent continued to be a resident of California for more than 180 days after the effective date of Section 404.2, and if he was a licensed operator or chauffeur on September 7, 1955 (effective date of this section), and continued so to be for six months thereafter, then he is amenable to the aforesaid italicized provisions of Vehicle Code Section 404.2 above mentioned, subject of course to the question of whether the legislature intended said section to apply to causes of action, that like the present one, existed prior to September 7, 1955 (effective date of the amendment), and if so, whether such an amendment would be violative of the Fourteenth Amendment to the Constitution of the United States, and Article I, Section 13 of the Constitution of California.
If appellant is to prevail upon this appeal on the basis of Section 404.2 the record must show (1) that respondent either accepted an operator's or chauffeur's license after the effective date of the statute, or (2) the retention of his existing license for a period of 180 days after the effective date of the statute. Concerning ourselves with the second proviso just mentioned, viz., retention of an operator's license for 180 days after the effective date of the statute, it is manifest that the law requires one who drives an automobile to have in his possession a valid and unrevoked operator's license. There is a rebuttable presumption 'That the law has been obeyed' (Code Civ.Proc. Sec. 1963, subd. 33), and 'That a person is innocent of crime or wrong' (Code Civ.Proc. Sec. 1963, subd. 1). Since it is a crime to violate the driver's license requirement of the Motor Vehicle Code (Sec. 230), indulging in the foregoing presumptions that respondent had obeyed the law and held a California driver's license, and the further presumption, 'That a thing once proved to exist continues as long as is usual with things of that nature' (Code Civ.Proc. Sec. 1963, subd. 32), ...
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Coast Bank v. Holmes
...superfluous had the legislature intended the entire section to apply only In futuro. As the court stated in Abrams v. Stone, 154 Cal.App.2d 33, at p. 42, 315 P.2d 453, at p. 459: 'In the construction of remedial statutes such as the one now before us regard must always be had for the eviden......
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Evangelatos v. Superior Court
...of the statute extends to past transactions, as well as to those in the future, then it will be so applied...." (Abrams v. Stone (1957) 154 Cal.App.2d 33, 42, 315 P.2d 453, italics added; accord Coast Bank v. Holmes (1971) 19 Cal.App.3d 581, 595, 97 Cal.Rptr. For example, In Harrison v. Wor......
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Regents of University of California v. Hartford Acc. & Indem. Co.
...action already barred, although completion was within the ten-year period. In Coast Bank, the court also quoted from Abrams v. Stone (1957) 154 Cal.App.2d 33, 315 P.2d 453, as follows: 'In the construction of remedial statutes such as the one now before us regard must always be had for the ......
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...retroactive in operation merely because it draws upon facts antecedent to its enactment for its operation. (Cf. Abrams v. Stone (1957) 154 Cal.App.2d 33, 40--41, 315 P.2d 453.) It has been held that drawing upon a felony conviction even prior to the time there was any legislation prohibitin......