Doe v. Brown

• Decision Date: 23 April 1962
• Docket Number: No. 5405,5405
• Citation: 125 S.E.2d 159,203 Va. 508
• Parties: JOHN DOE v. THOMAS PRESTON BROWN. Record
• Court: Virginia Supreme Court

Page 159

125 S.E.2d 159

203 Va. 508

JOHN DOE v. THOMAS PRESTON BROWN.

Record No. 5405.

Supreme Court of Appeals of Virginia

April 23, 1962.

W. F. Hazen (Taylor, Hazen & Laster, on brief), for the plaintiff in error.

J. Frank Shepherd (Paul Whitehead, on brief), for the defendant in error.

JUDGE: I'ANSON

I'ANSON, J., delivered the opinion of the court.

This is an appeal on behalf of an unknown uninsured motorist, denominated as John Doe pursuant to the statute, from a judgment in the amount of $14,000 entered against him on a jury's verdict in favor of the plaintiff, Thomas Preston Brown, who was injured as a result of the alleged negligence of an unknown operator of a motor vehicle while he was riding as a guest in an automobile operated by Edward Eugene Grubbs, a co-defendant. Judgment was entered for Grubbs and he is not a party to this appeal.

The motion for judgment was instituted under the 'Uninsured Motorist Law,' Code, 1960 Cum. Supp., § 38.1-381, as amended, the pertinent parts of which are set out in the footnote below. ¹

There was a demurrer on behalf of John Doe on the following grounds:

(1) That Code § 38.1-381 violates Article 1, § 11, of the Constitution of Virginia and the Fourteenth Amendment to the Constitution of the United States in that it does not provide for proper notice to him, and he is thus not afforded 'due process of law;'

(2) That § 38.1-381 violates § 52 of the Constitution of Virginia in that it embraces more than one object and its title is misleading; and

(3) That the motion for judgment fails to allege that the plaintiff gave notice of the accident within five days, or that he was reasonably unable to do so, to the Division of Motor Vehicles pursuant to the requirement of § 38.1-381(d).

Before argument was heard on the demurrer, John Doe moved for a summary judgment on the grounds that the motion for judgment failed to allege (1) that there was physical contact between the 'John Doe automobile' and the 'insured automobile;' (2) that the plaintiff or someone in his behalf had reported the accident within five days, or as soon as reasonably practicable, to the Division of Motor Vehicles; and (3) that the plaintiff had not filed with the insurance company within thirty days after the accident a statement under oath that he had a cause of action arising out of such accident against a person whose identity was unascertainable. John Doe contended that under the endorsement on the United States Fidelity and Guaranty Company insurance policy, which was filed as an exhibit with the grounds of defense, the allegations were necessary as a prerequisite to the maintenance of this action.

In overruling the demurrer and motion for summary judgment the trial court held that it was not necessary to allege that notice of the accident had been given to the Division of Motor Vehicles and the insurance company, or that there was contact between the 'John Doe automobile' and the 'insured automobile,' since the only issue in this action was the establishment of legal liability against John Doe.

John Doe contends in his assignment of error that the court erred in: (1) not sustaining the demurrer; (2) overruling the motion for summary judgment; (3) not setting aside the jury's verdict on the ground that it was excessive; (4) granting certain instructions; and (5) overruling his motion for a new trial on the ground of after-discovered evidence.

The undisputed evidence shows that the plaintiff was injured on the night of March 18, 1959, while riding as a guest in an automobile operated by Edward Eugene Grubbs in a northerly direction on Washington street in the city of Lynchburg when an automobile operated by an unknown person traveling south in the wrong lane, to the left of the center line of the street, and with its headlights on high beam, caused the automobile in which the plaintiff was a guest to collide with a parked automobile.

There was also testimony from a police officer, who arrived at the scene of the accident two or three minutes after it occurred, that both the plaintiff and Grubbs told him that an unknown operator of another car caused the accident.

Immediately after the accident occurred the plaintiff was admitted to a hospital where he was examined and released with instructions to report back the next morning. After examination the next morning he was admitted to the hospital with a diagnosis of a brain concussion. For a short period during his seven-day stay at the hospital he suffered from a loss of memory. Since his discharge from the hospital he has suffered from dizziness, headaches, temporal arteritis and neuritis, and has been unable to follow his usual occupation as a construction worker. Surgery was scheduled to be performed on him within a week after the trial in the court below on the 9th day of December, 1960, in an effort to improve his condition, but it would result in the entire right side of his head becoming permanently numb to sensation.

The specific questions involved on this appeal have not heretofore been before this Court for decision. For an excellent and exhaustive article on 'Uninsured Motorist Coverage in Virginia,' by Collins Denny, III, see 47 Va. L. Rev., p. 145. Also for comment on 'Virginia Takes New Approach to Uninsured Motorist,' see 16 Wash. & Lee L. Rev., p. 134.

The contention that the demurrer should have been sustained on the ground that the statute is unconstitutional because the provision for service of process on John Doe denies him due process of law is without merit.

It is universally recognized that 'due process of law' requires that a person be given notice and a reasonable opportunity to be heard before an impartial tribunal before any binding decree or order may be entered affecting his right to liberty or property. But this does not mean that the legislature in its discretion may not prescribe the kind of notice and the manner in which it shall be given if it is reasonable under all the circumstances and affords the party affected a reasonable opportunity to be heard. Violett v. City Council of Alexandria, 92 Va. 561, 567, 570, 23 S.E. 909, 912, 53 Am.St.Rep. 825, 31 L.R.A. 382; Ward Co. v. Henderson-White Co., 107 Va. 626, 630, 631, 635, 59 S.E. 476, 478, 480; A. S. White & Co. v. Jordan, 124 Va. 465, 466-471, 98 S.E. 24.

A state, under its police power, may adopt a statute providing for constructive service of process on a nonresident causing injuries on its highways, and there is no denial of 'due process of law' if it contains a reasonable provision for notice to the defendant and affords him a reasonable opportunity to be heard. Carroll v. Hutchinson, 172 Va. 43, 49, 200 S.E. 644, 646.

The statute, § 38.1-381(e), provides a substituted method of service of process on John Doe by requiring the delivery of a copy of the plaintiff's motion for judgment to the clerk of the court in which the action is brought, and service of a copy on the insurance company issuing the policy covering an insured for damages sustained by the alleged negligence of an unknown motorist is made as prescribed by law as though the insurance company were a party defendant. The insurance company is given the right to file pleadings and take other actions allowable by law in the name of John Doe.

The defendant John Doe is a fictitious person created under the provisions of the statute to stand in the place of the unknown motorist. John Doe is not a person, but for the purpose of this proceeding speaks through the insurance company. The insurance company, which is the party ultimately liable under the provisions of its policy for payment of a judgment obtained against John Doe, § 38.1-381(b), speaks and defends the action through and in the name of John Doe. Since John Doe is afforded the opportunity to defend the action through the insurance company, he has not been denied due process of law.

Moreover, the insurance company issued its policy in accordance with the statute, § 38.1-381(b), which requires all automobile bodily injury liability and property damage liability insurance policies to contain an endorsement or provisions undertaking to pay to the insured, within certain prescribed limits, all sums which he shall be legally entitled to recover for bodily injury and property damage from the owner or operator of an uninsured motorist vehicle; and under the provisions of the statute, § 38.1-381(c), and the endorsement on the policy the plaintiff is an insured covered by the policy. By accepting the risk under this coverage the insurance company received an additional premium from the named insured and became entitled to share in the uninsured motorist fund created by statute requiring all persons registering an uninsured motor vehicle to pay each year a fee of $15 (since March 15, 1960, the effective date of the 1960 amendment, a fee of $20). See §§ 12-65 and 12-66, Code of 1950, as amended, 1956 Replacement Volume, 1960 Cum. Supp., and § 46.1-167.1, Code of 1950, as amended, 1958 Replacement Volume, 1960 Cum. Supp.

To permit the insurance company, which is allowed to file pleadings and have control over the proceedings through John Doe, to escape liability on the constitutional ground asserted would allow it to escape a risk which it has accepted, under the requirement of § 38.1-381(b), and to become unjustly enriched. See Matthews v. Allstate Insurance Co., 194 F.Supp. 459, 467 (D.C.E.D. Va., 1961).

As a second ground for contending that the demurrer should have been sustained, it is said that Code § 38.1-381 violates § 52 of the Constitution of Virginia in that it deals with more than one object and its title is misleading.

The title of Chapter 282, Acts of Assembly of 1958, p. 336, reads as follows:

'An Act to amend and reenact § 38.1-381, as amended, of the Code of Virginia, relating to required coverage in motor vehicle bodily injury or property damage liability insurance contracts or policies, and matters...