Annie Brammall v. Louis Larose

• Decision Date: 02 May 1933
• Parties: ANNIE BRAMMALL v. LOUIS LAROSE
• Court: Vermont Supreme Court

165 A. 916

105 Vt. 345

ANNIE BRAMMALL v. LOUIS LAROSE

Supreme Court of Vermont

May 2, 1933

February Term, 1933.

Process---Statutes Construction of---Constitutional Law---Requirement in Statute for Substituted Service of Process That Copy Be Sent Nonresident Defendant as Necessary Part of Such Service---Sending of Copy of Process to Nonresident by Plaintiff under Statute Providing for Substituted Service as Ministerial Act---Resort to Extrinsic Matters in Construing Statute---Presumption That Legislature Had Common Knowledge That Necessary Steps in Action at Law Are Ordinarily Taken by Attorney for Plaintiff---Applicability of Common-Law Principles to Statute Susceptible of Two Meanings---Authority of Attorney at Law under Common Law---Construction of Phrase "Sent by the Plaintiff"---Acts 1925, No. 70 120---Requirement in Statute Relating To Substitution of Service as to Filing Affidavit of Compliance Therewith---Person Required To File Such Affidavit.

1. Statute providing for substituted service of process must be strictly construed.

2. No statute, penal or otherwise, is to receive construction so strict as to defeat its purpose.

3. Intention and meaning of Legislature are to be ascertained and given effect, not from letter of law, but from examination of whole and every part of act, its subject-matter, effects and consequences, and reason and spirit, although intention and meaning thus ascertained conflict with literal sense of words.

4. Statute must be construed to accomplish purpose for which it was intended, if it can fairly be done.

5. Construction of statute leading to absurd consequence or injustice must always be avoided, if possible.

6. Provision in Acts 1925, No. 70, 120, as amended, relating to substituted service of process in automobile accident case against nonresident by leaving copy with commissioner of motor vehicles, or in his office, with required fee, that copy of process shall be sent by plaintiff to nonresident defendant, is necessary part of such service to constitute due process of law under requirements of section one Fourteenth Amendment to Federal Constitution.

7. Requirement in Acts 1925, No. 70, 120, as amended, relating to substituted service of process in automobile accident case against nonresident by leaving copy with commissioner of motor vehicles, or in his office, with required fee, that copy of process shall be sent by plaintiff to nonresident defendant, is ministerial act, not required to be done by plaintiff personally, manifest purpose of statute being to make it reasonably probable that defendant shall receive actual notice of pendency of action.

8. In construing statute, Supreme Court may have resort to such extrinsic matters as Legislature may presumably have had in mind at time of enactment.

9. In construing statute, Supreme Court will not presume that statute, relating to substituted service of process in automobile accident case against nonresident, by leaving copy with commissioner of motor vehicles, or in his office requiring that copy of process shall be sent by plaintiff to nonresident defendant, was passed without common knowledge that necessary steps in commencement of action at law are ordinarily taken by attorney for plaintiff.

10. Statute susceptible of two meanings is to be examined in light of common-law principles.

11. At common law, an attorney at law has authority, by virtue of his employment as such, to do for his client all acts, in or out of court, necessary or incidental to prosecution of suit, and which affect remedy only.

12. Phrase "sent by the plaintiff to the defendant," in statute relating to substituted service of process in automobile accident case against nonresident, and requiring that copy of process shall be sent by plaintiff to nonresident defendant, held to include sending of such copy by plaintiff's duly authorized attorney.

13. Provision in Acts 1925, No. 70, 120, as amended relating to substituted service of process in automobile accident case against nonresident, as to filing of affidavit of compliance with requirement that copy of process be sent by plaintiff to nonresident defendant, held not to require, either specifically or by necessary implication, plaintiff's personal affidavit.

14. Where copy of process in automobile accident case in which substituted service of process was made under provisions of Acts 1925, No. 70, 120, as amended, was mailed to defendant by plaintiff's duly authorized attorney, held that affidavit of compliance filed by such attorney on plaintiff's behalf, reciting acts done by him in furtherance of client's business, was "plaintiff's affidavit," within spirit and reason of statute.

ACTION OF TORT against a nonresident defendant to recover for personal injuries received in an automobile accident. Service of process was made under the provisions of Acts of 1925, No. 70, /n 120, as amended, relating to substituted service on commissioner of motor vehicles. Defendant entered his special appearance, and filed motion to dismiss, attacking the sufficiency of service. Motion heard by the court, at the December Term, 1932, Addison County, Sherburne, J., presiding. Motion overruled. The defendant excepted. The opinion states the case.

Judgment affirmed, and cause remanded.

Clayton H. Kinney for the defendant.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

MOULTON

By section 120, No. 70, Acts of 1925, as amended, service of process upon a non-resident, whose motor vehicle has become involved in an accident or collision in this State, shall be made upon the commissioner of motor vehicles by leaving a copy of the process, with the required fee, with him or in his office, and "such service shall be sufficient service upon said nonresident, provided, that a copy of such process with the officer's return thereon, showing service thereof upon such commissioner as provided by this section, is sent by the plaintiff to the defendant by registered mail, and provided further that the plaintiff's affidavit of compliance herewith is filed with said process in court." In this case the copy was mailed to the nonresident defendant by the plaintiff's attorney, and the affidavit of compliance was executed and filed by him. The defendant, appearing specially, moved to dismiss for insufficient service. The motion was denied and he excepted.

A statute providing for substituted service must be strictly construed (Erickson v. Macy, 231 N.Y. 86 131 N.E. 744, 16 A.L.R. 1324, 1325), but no statute, penal or otherwise, is to receive a construction so strict as to defeat its purpose. Osgood v. C. V. Ry. Co., 77 Vt. 334, 337, 60 A. 137, 70 L.R.A. 930; In re Demarco, 77 Vt. 445, 447, 61 A. 36. The intention and meaning of the Legislature are to be ascertained and given effect, not from the letter of the law which is not in all cases a safe guide, but from an examination of the whole and every part of the act, the subject-matter, the effects and consequences, and the reason and spirit of the law, although the intention and meaning thus ascertained conflict with the literal sense of the words. Town of Hartland v. Damon's Estate, 103 Vt. 519, 528, 156 A. 518; Clifford v. West Hartford Creamery Co., 103 Vt. 229, 252, 153 A. 205; In re James, 99 Vt. 265, 271, 132 A. 40; Wheelock v. Haskell, 98 Vt. 47, 49, 50, 124 A. 713; In re Fulham's Estate, 96 Vt. 308, 317, 119 A. 433; In re Estate of Curtis, 88 Vt. 445, 451, 92 A. 965; Trustees of Caledonia Grammar School v. Kent, 86 Vt. 151, 158, 84 A. 26; Town of Ryegate v. Town of Wardsboro, 30 Vt. 746, 749. If it can fairly be done, a statute must be so construed as to accomplish the purpose for which it was intended. State v. Tacey, 102 Vt. 439, 442, 443, 150 A. 68, 68 A.L.R. 153; Grout v. Gates, 97 Vt. 434, 449, 124 A. 76; Martin v. Fullam, 90 Vt. 163, 171, 97 A. 442; In re National Guard, 71 Vt. 493, 499, 45 A. 1051. Since the consequences and the natural and reasonable effect of a proposed construction are to be considered in ascertaining the legislative intention [State v. Audette, 81 Vt. 400, 403, 70 A. 833, 18 L.R.A. (N.S.) 527, 130 Am. St. Rep. 1061; State v. Peet, 80 Vt. 449, 456, 68 A. 661, 14 L.R.A. (N.S.) 677, 130 Am. St. Rep. 998; Town of Ryegate v. Town of Wardsboro, supra] a construction leading to an absurd consequence must always be avoided if possible. Howley v. Kantor, 105 Vt. 128, 163 A. 628, 631; In re Fulham's Estate, supra; Morse v. Tracy, 91 Vt. 476, 478, 479, 100 A. 923; In re Howard's Estate, 80 Vt. 489, 495, 68 A. 513. And so, also, where an adherence to the strict letter of the statute, or to the literal import of the words would lead to injustice. Woodring v. McCaslin, 182 Ind. 134, 104 N.E. 759, 761; Stewart v. Small, 119 Me. 269...