Hatch v. Alamance Ry. Co

• Decision Date: 02 June 1922
• Docket Number: (No. 332.)
• Citation: 112 S.E. 529
• Parties: HATCH . v. ALAMANCE RY. CO.
• Court: North Carolina Supreme Court

112 S.E. 529

HATCH .
v.
ALAMANCE RY. CO.

(No. 332.)

Supreme Court of North Carolina.

June 2, 1922.

[112 S.E. 529]

Clark, C. J., and Stacy, J., dissenting.

Appeal from Superior Court, Alamance. County; Daniels, Judge.

Action by Margaret A. Hatch, as administratrix of George W. Hatch, against the Alamance Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Plaintiff brought suit against the Piedmont Power & Light Company and the Alamance Railway Company to recover damages for the alleged negligent death of her intestate. The Alamance Railway Company operates an interurban street car line connecting Burlington, Graham, and Haw River, and the Piedmont company owns a plant in which

[112 S.E. 530]

electricity was generated, for running the cars. The intestate in January, 1918, was in the employ of the Alamance Railway Company, and on January 22 was operating a freight car on the company's line for the purpose of clearing the tracks of ice and snow. There was an unsecured air pump in the car. Near Graham the car was derailed and turned over, and the pump fell upon the intestate, causing his death. The complaint sets out several alleged acts of negligence. There was denial by the defendant, and a plea of contributory negligence. At the conclusion of the evidence the court dismissed the action against the Piedmont Company, and retained it against the railway company. Issues of negligence, contributory negligence, and damages were answered in favor of the plaintiff.

The intestate's death occurred on January 22, 1918. The original summons was issued January 13, 1919, and on that day the sheriff went to the offices of the two defendants and informed J. H. Hardin, their local agent, that he had for service a summons against the defendants in favor of the plaintiff, advised him of the contents, and tendered him a copy of the summons for each defendant. Thereupon Hardin, believing that he was not a proper person upon whom the summons could be served, in good faith told the sheriff that he wast not an officer of either of the companies, nor a proper person upon whom to make service, and that J. H. Bridgers was the president of each company. The sheriff did not put either copy of the summonses in the possession of Hardin, but he kept them in his own possession, and departed. Hardin was not an officer of either company, but at that time was performing the local duties of the president during the latter's temporary absence. Said Bridgers lived in Henderson. The sheriff relied on Hardin's statement, and made no effort to serve the president in the county of his residence, but awaited his return to Alamance.

The summons which was issued on January 13, 1919, was returnable to a criminal term of one week which convened on March 3; the sheriff made no return on the summons to that term, but kept it in his possession; no application was made at the return term for an alias summons, nor was an alias issued or ordered. On April 10, 1919, one of the attorneys for the plaintiff filed before the clerk a sworn statement that summons had been issued on January 13, and turned over to the sheriff, and that the summons had never been served on Bridgers. The clerk then issued a summons marked alias (April 10) returnable May 26, which was served on Bridgers by the manual delivery of two copies; and at the same time the sheriff made manual delivery of two copies of the original summons. There was no session of the superior court between the March and May terms.

The defendant insisted that the action was not commenced within 12 months after the death of the intestate. Judgment for plaintiff. Defendant appealed.

P. P. Hobgood, Jr., of Greensboro, for appellant.

E. S. W. Dameron, of Burlington, J. Elmer Long, of Durham, and W. S. Coulter, of Burlington, for appellee.

ADAMS, J. [1] The legal right to recover damages for death caused by wrongful act did not exist at common law, and was first conferred in England by Lord Campbell's Act. 9 & 10 Vict. c. 93 (1846). Thereafter the main features of this statute were enacted by the General Assembly, and are now included in the Consolidated Statutes. Section 160 provides in part that, when the death of a person is caused by the wrongful act, neglect, or default of another, * * * the person or corporation causing the death shall be liable to an action for damages to be brought by the personal representative of the deceased within one year after such death. The words "to be brought within one year" have been interpreted, not as a statute of limitation which must be pleaded (C. S. § 405), but as a condition annexed to the plaintiff's cause of action; and at the trial the plaintiff must prove that his action was instituted within the time prescribed by law (Taylor v. Iron Co., 94 N. C. 526; Best v. Kinston, 106 N. C. 206, 10 S. E. 997; Gulledge v. R. R., 147 N. C. 234, 60 S. E. 1134; Id., 148 N. C. 568, 62 S. E. 732; Hall v. Railroad Co., 149 N. C. 109, 62 S. E. 899; Trull v. Railroad Co., 151 N. C. 546, 66 S. E. 586; Bennett v. Railroad Co., 159 N. C. 346, 74 S. E. 883).

At the bearing the defendant contended that the plaintiff's action had not been instituted within 12 months after the intestate's death, and at the conclusion of the evidence sought a directed verdict both by motion and by written request. The intestate's death occurred on January 22, 1918. The original summons was issued on January 13, 1919, and was returnable to a criminal term of one week beginning on the 3d day of March. It was received by the sheriff on the day it was issued, but was not returned to the March term. In fact it was not served, according to the officer's certificate, until the 10th of April, and was then returned to the May term. On April 10, upon affidavit filed by an attorney for the plaintiff, the clerk issued another summons against the defendant returnable to the May term (May 26.) This summons was indorsed "Alias Original, " but there was nothing else to indicate that it was intended for alias process; it was issued without an order from the judge, and was

[112 S.E. 531]

served on April 10 and returned with the original summons to the May term. The act to restore the provisions of the Code of Civil Procedure in regard to process and pleadings went into effect July 1, 1919.

An action is commenced as to each defendant when the summons is issued against him (C. S. §§ 404, 4T5), but in actions in personam jurisdiction of a cause and of parties litigant can be acquired only by personal service of process within the territorial jurisdiction of the court, unless there is an acceptance of service or a general appearance, actual or constructive (Bernhardt v. Brown, 118 N. C. 701, 24 S. E. 527, 715, 36 L. R. A. 402; Vick v. Flournoy, 147 N. C. 212, 60 S. E. 978; Warlick v. Reynolds, 151 N. C. 610, 66 S. E. 657; 21 R. C. L. 1315).

The summons must be served on a corporation by the delivery of a copy thereof to one of certain designated officers or to a local agent (C. S. § 483); and this requirement, it is held, must be strictly observed (Allen v. Strickland, 100 N. C. 226, 6 S. E. 780; Smith v. Smith, 119 N. C. 314, 25 S. E. 878; Lowman v. Ballard, 168 N. C. 18, 84 S. E. 21, L. R. A. 1915D, 427, Ann. Cas. 1917B, 899). In the case last cited Hoke, J., says:

"Authority here is also to the effect that where a statute provides for service of summons or notices in the progress of a cause by certain persons or by designated methods, the specified requirements must be complied with or there is no valid service."

The case of Aaron v. Lumber Co., 112 N. C. 189, 16 S. E. 1010, also is directly pertinent, and, indeed, is decisive of the question here presented. The constable in the township in which the defendant had its principal place of business served the summons by "handing" it to the president and the secretary and treasurer of the defendant. They were the only officers. They read the summons and returned it to the constable. The court held that, since no copy of the summons was left with either officer, the pretended service was not legally sufficient. In Amy v. City of Watertown, 130 U. S. 317, 9 Sup. Ct. 536, 32 L. Ed. 946, Mr. Justice Bradley said:

"The cases are numerous which decide that where a particular method of serving process is pointed cut by the statute, that method must be followed, and the rule is especially exacting in reference to corporations"—and cites Kibbe v. Benson, 84 U. S. (17 Wall.) 624, 21 L. Ed. 741; Alexandria v. Fairfax, 95 U. S. 774, 24 L. Ed. 583; Settlemier v. Sullivan, 97 U. S. 444, 24 L. Ed. 1110; Evans v. R. Co., 14 Mees. & W. 142; Walton v. Universal Salvage Co., 16 Mees. & W. 438; Brydolf v. Wolf, 32 Iowa, 509; Hoen v. A. & P. R. Co., 64 Mo. 561; Lehigh Valley Ins. Co. v. Fuller, 81 Pa. 398.

The appeal shows, not a technical irregularity in the service of the summons; but a total failure of the service of the first summons. The statute in plain terms requires the delivery of a copy of the summons, and provides that the proof of service shall be the certificate of the officer, the affidavit of the printer, or the written admission of the defendant.

Very clearly, in our opinion, the interview between the sheriff and Hardin, the local agent, did not amount to service of the summons. The judge found that Hardin acted in good faith, and not with intent to deceive. No copy was left with him, and the certificate of the sheriff, which is the proof provided by statute, shows service, not on Hardin, but on Bridgers, the president. The cases cited by the plaintiff—Johnson v. Johnson, 52 Ga. 450; Taylor v. Cook, 1 N. J. Law, 54—are not relevant to the facts in the case at bar. In the former the officer by mistake left a copy of the writ at the home of the defendant's brother, and the defendant accepted such delivery as service; and in the latter the defendant directed the place of service.

A proper application of these principles provides substantial support for the argument that neither the...