Hamrick v. Thompson, 6 Div. 748

• Court: Supreme Court of Alabama
• Citation: 165 So.2d 386,276 Ala. 605
• Docket Number: 6 Div. 748
• Parties: Robert A. HAMRICK v. Mrs. Tommie THOMPSON.
• Decision Date: 11 June 1964

Page 386

165 So.2d 386

276 Ala. 605

Robert A. HAMRICK v. Mrs. Tommie THOMPSON.

6 Div. 748.

Supreme Court of Alabama.

June 11, 1964.

Mead, Norman & Fitzpatrick, Birmingham, for appellant.

Mudd, Baker & McDaniel, Birmingham, for appellee.

COLEMAN, Justice.

This is an appeal by defendant from judgment for plaintiff for personal injury and automobile damage sustained by plaintiff as result of automobile collision.

Motion to quash.

Defendant assigns as error the action of the court in overruling defendant's motion to quash the service of summons and complaint, which service was made on the secretary of state as agent of defendant pursuant to Act No. 415, approved November 13, 1959, 1959 Acts of Alabama, page 1102; which appears as § 199(1/2), Title 7, 1963 Pocket Part, Code of Alabama Recompiled 1958.

The collision occurred March 18, 1958. Complaint was filed February 14, 1959.

At the time of the collision and at all times thereafter until January 20, 1959, defendant was a resident citizen of Jefferson County, Alabama. During the period from collision until January 20, 1959, defendant was not absent from the State of Alabama and did not conceal himself so that process could not be personally served upon him. On January 20, 1959, defendant became a bona fide resident citizen of the State of North Carolina and a nonresident of the State of Alabama.

Pluries summons and complaint were served on the secretary of state March 23, 1960. The secretary of state sent statutory notice to defendant by registered mail and defendant received the notice March 28, 1960. The facts thus stated are undisputed.

Defendant recognizes that a personal judgment for money may be rendered against a nonresident, without personal service of process on such nonresident, as provided by § 199, Title 7, Code 1940. Defendant argues, however, that statutes providing for substituted service are in derogation of the common law, and, for that reason must be strictly construed; and, that, when Act No. 415 is thus construed, it does not provide for service of process on a person who was a resident of Alabama at the time of the collision but who is a nonresident at the time of attempted service. Defendant says: 'It is clear that the statute was not designed to affect persons who in good faith become non-residents of the state.'

Thus the question is: Does Act No. 415 provide for service on a defendant who was a resident at the time of collision but who is a nonresident at the time of service?

The title and parts of Act No. 415 recite as follows:

'AN ACT

'To provide further for the service of process in civil suits growing out of motor vehicle accidents; providing an additional or alternative meehod of serving such process upon any person who was a resident of the State of Alabama when a motor vehicle, owned or operated upon the public highways in the State by such person was involved in an accident, but who has since absented himself from the State or concealed himself so that personal service cannot be had upon him.

'Be it Enacted by the Legislature of Alabama:

'Section 1. Should any resident of this State, who was the driver or owner of a motor vehicle involved in an accident or collision while being operated on any public highway in this State, thereafter leave the State and remain away for a period of 60 days from the date of such accident or for such period conceal himself so that process cannot be served upon him, such absence from the State or such concealment shall be deemed equivalent to an appointment by such person of the secretary of state of the State of Alabama, or his successor in office, to be such person's, or in case of his death his personal representative's, true and lawful agent or attorney upon whom may be served the summons and complaint in any action against such absent or concealed resident, or if he has died against his personal representative, growing out of such accident or collision; and such departure from the State or concealment shall be deemed a signification of such absent or concealed resident's agreement and equivalent to an appointment by such ansent or concealed resident of the secretary of state of the State of Alabama, or his successor in office, to be such absent or concealed resident's, or in case of his death his personal repsentative's, true and lawful agent or attorney upon whom may be served all lawful process in any action or proceeding against such resident, or if such resident has died against his personal representative, growing out of any accident or collision in which a vehicle, owned or operated by such absent or concealed resident of this State, was involved while being operated upon the public highways within Alabama, so that any such summons and complaint against such absent or concealed resident, or if he has died against his personal representative, which is so served shall be of the same legal force and effect as if personally served within the State of Alabama.

'........

'Section 6. The provisions of this Act are cumulative and it shall not be construed to repeal or modify any other law of this State, but it shall be construed to provide an additional or alternative method of serving process in actions growing out of motor vehicle accidents upon residents of this State who are absent or have concealed themselves so that process cannot be personally served on them in the usual manner.

'........

The general rule that statutes in derogation of the common law must be strictly construed does not require a literal and blind adhesion to mere words. Broaddus v. Johnson, 235 Ala. 314, 179 So. 215. A literal interpretation will not be adopted when it would defeat the purpose of the statute, if any other reasonable construction can be given to the words. Ray v. Richardson, 250 Ala. 705, 36 So.2d 89.

The body of the act commences: 'Should any resident . . . who was the driver . . . of a motor vehicle involved in . . . collision while being operated on any public highway in this State, thereafter leave the State and remain away for a period of 60 days . . . such absence from the State . . . shall be deemed . . . an appointment by such person of the secretary of state . . . to be such person's . . . true and lawful agent . . . upon whom may be served the summons and complaint in any action against such absent . . . resident . . . growing out of such . . . collision . . ..'

The defendant was a resident of this state; he was the driver of a motor vehicle involved in a collision while it was being operated on a public highway in this state; defendant thereafter left the state and had remained away for 60 days when service was had on the secretary of state. The statute says when a resident has done these things, he has appointed an agent for service of process, namely, the secretary of state.

Defendant insists, however, that the statute refers only to a person who was resident at the time of service and that the instant defendant was not a resident at the time of service. The body of the act does not limit its operation to those who were residents at the time of service of process. Section 1 refers to 'any resident . . . who was the driver . . . of a motor vehicle . . . while being operated on any public highway in this State . . ..' If, as defendant contends, there be ambiguity in the reference to 'any resident,' there is a rule of construction which resolves the ambiguity.

While the title of an act cannot contradict the plain and unambiguous terms in the enacting clause, the recitals of the title are available aids to the removal of ambiguity or uncertainty in the enacting clause. In cases of doubt in respect to an ambiguous legislative context, the preamble of an act must be resorted to to ascertain the intent and resolve the doubt. To arrive at the intent of the law, the...