Carroll v. Hutchinson.*

• Citation: 200 S.E. 644
• Parties: CARROLL et al. v. HUTCHINSON.*
• Decision Date: 09 January 1939
• Court: Supreme Court of Virginia

200 S.E. 644

CARROLL et al.

v.HUTCHINSON.^*

Supreme Court of Appeals of Virginia.

Jan. 9, 1939.

SPRATLEY, J., dissenting.

Error to Circuit Court, Accomac County; Jno. E. Nottingham, Judge.

Action by Marguerite Hutchinson against Ralph H. Carroll and H. Marion Malone, etc., for injuries received in an automobile accident. Judgment for the plaintiff, and the defendants bring error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, and SPRATLEY, JJ.

B. Drummond Ayres, of Accomac, and H. Ross Black, Jr., of Baltimore, Md., for plaintiffs in error.

Savory E. Amato, of Norfolk, G. Walter Mapp, of Accomac, and William King Mapp, of Keller, for defendant in error.

HOLT, Justice.

Miss Marguerite Hutchinson, who was injured in an automobile accident, sought compensation in the trial court and has secured a verdict and judgment for $1,350.

This plaintiff lived with her parents in Norfolk as did her sister, Miss Gladys. There was another sister, Miss Winifred, in New York, whom the Norfolk sisters wished to visit. These two sisters went to New York and were returning with Winifred, on vacation, when the accident occurred. Gladys drove; Marguerite could have driven but had no driver's license. The car in which they rode belonged to their father and was used with his knowledge and consent. Plaintiff tells us that it was by the father "turned over to Gladys, " who gave to that daughter funds to meet all traveling expenses, and with money thus furnished, she did meet them as the occasion arose. Upon their return, they came into collision with a truck on an arterial road leading north and in Accomac county.

The accident occurred about a quarter to eight in the evening of August 10th. 400 or 500 feet away, they saw coming up the road a large vehicle covered with many lights, apparently in its center. It turned out to be a truck and loaded trailer, 25 feet long and 7¹/2 feet wide. The automobile was a Dodge sedan. The roadway, 18 feet wide, was paved with concrete and was clear and straight. The automobile was then traveling at from 25 to 35 miles an hour and the truck from 20 to 25 miles an hour. In an attempt to escape collision, the automobile, which was on its right side of the road, turned still further to the right, when its right front and rear wheels dropped from the concrete to the shoulder, there worn away from 4 to 8 inches, and traveled on this shoulder for three or four car lengths, when it turned back upon the concrete. In doing this, the rear left wheel, which had theretofore been on the concrete, went off upon the shoulder; the car then came back upon the road practically at right angles and to a complete stop on its side of the road's center. There was ample room then for the truck to pass to the right. This it did not do but continued in the center of the road and struck the automobile somewhere about its right front wheel.

In this statement of facts, we have accepted as true evidence favorable to the plaintiff, as we should.

The plaintiff was injured, and there is no question as to the amount of the recovery.

At the hearing, defendants, who were non-residents, appeared specially for the purpose of quashing the process and contended that there had been no proper service. In such a case, personal service is provided for by statute, Code, section 2154 (70) (i), which reads:

"* * * such service shall be sufficient upon the said non-resident, provided, that notice of such service and a copy of the process or notice are forthwith sent by registered mail, with registered delivery receipt requested, by the director [Division of Motor Vehicles] to the defendant, or defendants, and an affidavit of compliance herewith by the director or some one designated by him for that purpose and having knowledge of such compliance shall be filed with the declaration or notice of motion."

This statute first appears in Acts of Assembly, 1932, c. 342, pp. 614-631, § 23 (i), which declares that:

"Service of such process or notice shall be made by leaving a copy of the process or notice with a fee of three ($3.00) dollars in the hands of the director, or in his office, and such service shall be sufficient upon the said nonresident; provided, that notice of such service and a copy of the process or notice are forthwith sent by registered mail by the director to the defendant and the director's affidavit of compliance herewith be filed with the declaration or notice of motion."

Thirty-five States have statutes of like purport which are practically everywhere held to be a valid exercise of police power. Where this is true, it follows that there is no denial of due process of law. That of Massachusetts came under review in Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091. There a statute which provides for service upon a non-resident was upheld. It reads:

"Provided, that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff to the defendant, and the defendant's return receipt and the plaintiff's affidavit of compliance herewith are appended to the writ and entered with the declaration." G.L. Mass. c. 90, § 3A, as added by St. 1923, c. 431, § 2.

It differs from ours in that the return receipt must be appended to the writ. To the same effect is the New York statute. New York Vehicle and Traffic Law, Consol.Laws, c. 71, sec. 52; Shushereba v. Ames, 255 N.Y. 490, 175 N.E. 187. These statutory safeguards are adopted in many states, and in those states which have adopted them, their conditions must be observed. But they have not been universally adopted.

In Connecticut, process must be sent by registered mail, postage prepaid. That statute was upheld. Hartley v. Vitiello, 113 Conn. 74, 154 A. 255. The court commented upon the fact that a different conclusion had been reached by some of the inferior courts of New York but in courteous language declined to adopt their conclusions.

Maryland only requires that this process be sent by registered mail. Grote v. Rogers, 158 Md. 685, 149 A. 547. That case declared the statute to be unconstitutional but based its conclusion upon the fact that the address of the registered letter was conclusively presumed to be correct.

In Minnesota, all that is demanded is that process be sent by mail. This provision was upheld in Schilling v. Odlebak, 177 Minn. 90, 224 N.W. 694, although there reversal of the trial court was ordered but for another reason.

All required by the Wisconsin statute, St. 1925, § 85.15(3), is that process be "sent by mail by the plaintiff to the defendant, at his last known address." State v. Belden, 193 Wis. 145, 211 N.W. 916, 214 N.W. 460, 57 A.L.R. 1218.

The validity of our statute was attacked in the case of Weiss v. Magnussen, D.C., 13 F.Supp. 948. Judge Way, sustaining it, said [page 950]:

"If I construe the Virginia statute correctly, it has done something more than make 'a reasonable provision, for such probable communication.' It has definitely required the communication, a copy of the summons or notice, to be 'forthwith sent * * * to the defendant or defendants.' It would appear to follow, therefore, that failure to comply with that certain and definite provision of the statute cannot result in any valid judgment against the defendant, while compliance with the provision assures that defendant will have ample notice of the suit and an opportunity to have his day in court."

We are safe in using this yardstick laid down by Mr. Chief Justice Taft: "We think that a law with the effect of this one should make a reasonable provision for such probable communication." Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 260, 72 L.Ed. 446, 57 A.L.R. 1230. Judge Way in. the Weiss Case thought that we had met and more than met this requirement.

In the instant case our statute, which does not require that the return receipt be filed as an exhibit, has been literally followed. The request for a return receipt was never essential.

A letter properly addressed, stamped and mailed is presumed to have reached the addressee, although this presumption is not conclusive, but is founded upon the probability that the Postal Department will properly discharge its duties. Yanago v. Aetna Ins. Co., 164 Va. 258, 178 S.E. 904. This presumption is strengthened where the letter was registered; indeed, it is not contended here that there was no actual delivery. Defendants rest their case alone upon the fact that this return receipt has not been filed, a requirement, as we have seen, not written into our statute. Not only does it contain reasonable provisions for probable communications, but the conduct of the parties indicates communication was actually had. Counsel promptly appeared, and while their special appearance did not waive the claim that this return receipt should have been filed, it did indicate reasonable probability that process had been received, not through random chance, as was true in Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446, 57 A.L.R. 1230, but because there had been compliance with an adequate statute. In said last named case, the court had under consideration a New Jersey statute which provided only for service of process on the Secretary of State. It was said that there was no provision there which made it reasonably probable that notice to the Secretary would be communicated to the defendant, and that in such a case, actual notice was not sufficient.

Our statute relating to service of process on these non-resident defendants is constitutional.

It is also contended that it is unconstitutional in that it embraces more than one object as expressed in its title. Constitution of Virginia, section 52.

The provisions relating to service of process on non-resident defendants is embodied in "The Motor Vehicle Code of Virginia, " Acts, 1932, c. 342, p. 613. If they are germane to those purposes indicated by the title of this Automobile Code, they are constitutional.

This phase of this statute...