Brammall v. Larose

Decision Date02 May 1933
Citation165 A. 916
PartiesBRAMMALL v. LAROSE.
CourtVermont Supreme Court

Exceptions from Addison County Court; John C. Sherburne, Judge.

Action by Annie Brammall against Louis LaRose. Judgment denying defendant's motion to dismiss for insufficient service of process, and he brings exceptions.

Affirmed and cause remanded.

Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

F. C. Hinchey and Fenton, Wing, Morse & Jeffords, all of Rutland, for plaintiff.

Clayton H. Kinney, of Rutland, for defendant.

MOULTON, Justice.

By section 120, No. 70, Acts of 1925, as amended, service of process upon a nonresident, 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 non-resident, provided, that a copy of such process with the officer's return thereon, showing service thereof upon said secretary as provided in 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. Central Vermont 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, SS Vt. 445, 451, 92 A. 965; Trustees of Caledonia County 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. 1353; Grout v. Gates, 97 Vt. 434, 439, 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, 450, 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. Kanter (Vt.) 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, 110 A. 683, 685; In re Brocklebank, 23 Q. B. D. 461, 462, 463. This principle has been applied to the construction of a statute providing for substituted service of process. Bourne v. Levine, 100 N. J. Eq. 141, 134 A. 660, 661.

The provision that a copy of the process shall be sent by the plaintiff to the nonresident defendant is a necessary part of the service upon the latter, because where there is an enforced acceptance of service of process on a state officer, without some written communication making actual notice reasonably probable, there would be no due process of law as required by section 1 of the 14th Amendment of the Federal Constitution. Wuchter v. Pizzutti, 276 U. S. 13, 19, 48 S. Ct. 259, 260, 72 L. Ed. 446, 57 A. L. R. 1230. But the required act. is a ministerial one. and we cannot suppose that it was the legislative intention that the missive must be deposited in the post office only by the hand of the plaintiff. The manifest purpose of the statute is to make it reasonably probable that the defendant shall receive actual notice of the pendency of the action. Under the construction for which the defendant contends, if the plaintiff were bedridden as the result of the accident, and so unable personally to mail the copy of the process, there could be no valid service. This would be an absurd and unjust result, and we cannot construe the statute to require it. We may have resort to such extrinsic matters as the Legislature may presumably have had in mind at the time of the enactment (In re Downer's Estate, 101 Vt. 167, 176, 142 A. 78), and it cannot be supposed that the statute was passed without the common knowledge that the necessary steps in the commencement of an action at law are ordinarily taken by the attorney for the party plaintiff. Moreover, the statute, being susceptible of two meanings, is to be examined in the light of common-law principles (State v. Central Vermont R. Co., 81 Vt. 459, 460, 71 A. 193, 21 L R. A. (N. S.) 949), and at common law "an attorney at law has authority, by virtue of his employment as such, to do in behalf of his...

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