Anderson v. Outland
| Decision Date | 07 September 1962 |
| Parties | , 210 Tenn. 526 Harold Russell ANDERSON v. James Sherill OUTLAND. |
| Court | Tennessee Supreme Court |
Aaron Brown, Paris, for plaintiff in error.
Van Dyke & Dunlap, Paris, for defendant in error.
This was an action brought by a resident against a nonresident motorist for damages for personal injuries caused by defendant's negligence in operating his automobile on a highway in this State. Process to him was accepted by the Secretary of State as his agent, under our statute (T.C.A. Secs. 20-224 to 20-226) providing for substituted service in such cases.
The accident occurred October 8, 1960, the summons was issued and the declaration filed October 5, 1961, forwarded to the Secretary of State, received by him October 16, 1961, and on the same day he accepted service of the process and mailed a copy of it and of the declaration to defendant at his home address in Kentucky, and on October 20, 1961, the Secretary received the return receipt showing delivery had been made.
Defendant pleaded in abatement to the service, that the Secretary of State's agency to accept service for him continued only for one year from the date of the accident (Oct. 8, 1960), and that the Secretary's attempted acceptance of service October 16, 1961, 8 days after the year expired, and after the agency had ended, was invalid and ineffective to give the Court jurisdiction of him.
The Trial Judge sustained the plea and dismissed the action. Plaintiff appealed in error and insists this ruling was error. So, the question is one of construction of our statute as to the period or duration of the Secretary of State's agency to accept service for defendant; whether in this case the agency expired with the year, or continued until the Secretary could complete the service.
Our statute, like those of the other States of the Union, extends to a nonresident motorist the privilege of operating a motor vehicle on the highways of the State, and provides that by using such privilege he appoints the Secretary of State his agent to accept service of process for him in any civil action for injury or damage caused in this State by his operation of such vehicle (T.C.A. Sec. 20-224).
The statute also provides that such service of process shall be by lodging the summons and a copy with the Secretary of State; and that he shall promptly mail the copy to the defendant, with written notice that service was so made; and that if it appears that such nonresident is dead, then either original or alias process may issue directed to the personal representative of such nonresident (T.C.A. Sec. 20-226).
Up to 1955 the provision of the statute (T.C.A. Sec. 20-224) as to the period or the duration of the Secretary of State's agency to accept service for a nonresident motorist was as follows:
This provision was construed in Tabor v. Mason Dixon Lines, Inc. (1953) 196 Tenn. 198, 264 S.W.2d 821. There, the accident occurred November 18, 1951, summons issued November 13, 1952, and was received by the Secretary of State November 25, 1952, a year and 7 days after the accident. It was held that the Secretary's agency to accept service continued only 'one year from the accident' and had expired when he undertook to accept service.
It was there urged that the suing out of the summons within the year stopped the running of the period, because this statute was to be considered as a statute of limitation, in pari materia with Code Section 8571, which provides that the suing out of a summons is the commencement of an action, stopping the running of the limitation, whether summons be executed or not, if the action is duly prosecuted by alias process, etc.
The Court rejected this contention and held that this is 'not a limitation statute but an appointing statute appointing this official as agent for the nonresident.' The Court also said that there was 'no ambiguity' in the statute, and that from 'its very plain language it is rather obvious that the agency of the Secretary of State of Tennessee for the nonresident only extends one year from the date of the accident.'
Thus the construction of the statute, established by the Tabor case, was that the Secretary's agency to accept service ended with the year so that he could not later accept service even though the process and been sued out within the year. A like ruling was made upon the same state of facts in Oliver v. Altsheler, 198 Tenn. 155, 278 S.W.2d 675.
A different result, however, was reached in Noseworthy v. Robinson, 203 Tenn. 683, 315 S.W.2d 259. Summons was sued out, received by the Secretary and mailed by him to nonresident, all within the year; but was returned unclaimed, owing to mistake in the address. It was held that an alias summons could properly issue after the year was out so as to bring the defendant nonresident before the Court.
As stated, Tabor v. Mason Dixon Lines, Inc., supra, held that, under the above quoted provision, the Secretary of State's agency to accept service extended for only one year from the accident and he could not after the year accept service of process sued out within the year. Apparently to meet that holding, the Legislature in 1955 amended this provision by adding at the end of it another paragraph as follows:
'Such agency shall continue so long after the expiration of such year as may be necessary to enable the secretary of state to complete the service of process, sued out prior to the expiration of said year and forwarded to him with reasonable dispatch * * *' (Ch. 265, Acts 1955; 1961 Supp.T.C.A. Sec. 20-224).
Thus while the statute originally said 'the agency of the Secretary of State to accept service of process shall continue for a period of one year' from the accident, this amendment says: 'Such agency shall continue so long after the expiration of such year as may be necessary to enable' him 'to complete the service of process, sued out prior to the expiration of said year and forwarded to him with reasonable dispatch.' (Italics ours.)
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