Jenkins v. Hill

• Decision Date: 07 February 1966
• Docket Number: No. 5-3754,5-3754
• Citation: 398 S.W.2d 679,240 Ark. 197
• Parties: Williams G. JENKINS, Appellant, v. Ben F. HILL, Appellee.
• Court: Arkansas Supreme Court

Page 679

398 S.W.2d 679

240 Ark. 197

Williams G. JENKINS, Appellant, v. Ben F. HILL, Appellee.

No. 5-3754.

Supreme Court of Arkansas.

Feb. 7, 1966.

Wright, Lindsey & Jennings and William R. Overton, Little Rock, for appellant.

Henry & Boyett, Searcy, for appellee.

HARRIS, Chief Justice.

This is a case of first impression. On August 8, 1962, William G. Jenkins, appellant, while operating his automobile through Bald Knob, Arkansas, struck appellee, Ben F. Hill, a pedestrian, who was crossing the street. Jenkins was a citizen of Texas, residing in Weatherford. On August 25, 1964, Hill instituted suit against Jenkins in the Circuit Court of White County for alleged personal injuries sustained in the accident. Summons was served on the Secretary of State as agent for service for appellant on August 28, 1964. On the day before, Hill's attorney had mailed a copy of the summons and complaint, by registered mail, with return receipt requested, to Jenkins at 412 1/2 South Jefferson Street, Weatherford, Texas. The letter was returned by the post office to appellee's attorney. On October 1, 1964, Jenkins, having learned from other sources that the suit had been instituted against him, filed a special plea and answer. Appellee moved for default judgment, because of Jenkins' failure to file a timely answer; the court granted the motion, and entered judgment for appellee in the amount of $9,990.00. A motion to set aside the judgment was filed on behalf of appellant, but was denied. Hence, this appeal. For reversal, appellant asserts that the trial court erred in entering a default judgment for two reasons; first, that appellee failed to give appellant notice of service of summons on the Secretary of State as required by the statute, and second, that Jenkins was not subject to the jurisdiction of the trial court, because he did not receive actual notice of the pendency of the lawsuit. It is then asserted that the court erred in refusing to set aside the default judgment.

The parties entered into a stipulation of fact as follows:

'1. On August 25, 1964, a complaint was filed in this Court by plaintiff, Ben F. Hill, against defendant, William G. Jenkins, a non-resident, for injuries arising out of an accident occurring in Bald Knob, White County, Arkansas, on August 8, 1962. A copy of that complaint is attached as Exhibit No. 1 and made a part hereof. Process was issued by the Circuit Clerk, directed to the Sheriff of Pulaski County, Arkansas, who served the Arkansas Secretary of State on August 28, 1964. A copy of that process with return is attached hereto as Exhibit No. 2 and made a part hereof.

'2. On August 27, 1964, plaintiff's attorney deposited in the United States Mail a Notice of Suit filed, a copy of the process and the complaint addressed to defendant at 412 1/2 South Jefferson Street, Weatherford, Texas, registered mail with return receipt requested. 412 1/2 South Jefferson Street, Weatherford, Texas, was the address of defendant, William G. Jenkins, as shown on the Arkansas State Police report filed August 10, 1962, by Trooper John M. Westmoreland. The registered letter addressed to defendant was returned by the U. S. Post Office to plaintiff's attorney. A copy of the letter with attachments is attached as Exhibit No. 3 and made a part hereof. A copy of the return receipt which was returned by the U. S. Post Office is attached as Exhibit No. 4 and made a part hereof.

'3. On August 28, 1964, a complaint and summons were served on the Arkansas Secretary of State who, on September 1, 1964, mailed them by registered mail to William G. Jenkins at 412 1/2 South Jefferson, Weatherford, Texas. The envelope and contents were returned undelivered by the Post Office Department and received in the office of the Secretary of State on September 4, 1964, where they now are.

'4. A letter was sent by the office of Secretary of State, State of Arkansas, to plaintiff's attorney stating that notice had been sent by registered mail to defendant at 412 1/2 South Jefferson, Weatherford, Texas, advising him of the pendency of the suit. A copy of that letter is attached hereto as Exhibit No. 5 and made a part hereof.

'5. On September 2, 1964, a copy of the complaint and a letter were mailed to defendant's liability insurance carrier in Fort Worth, Texas. A copy of that letter is attached as Exhibit No. 6 and made a part hereof. Defendant contends that this is not relevant, competent or material evidence and does not waive his objection to it.

'6. On October 1, 1964, defendant filed in the Circuit Court of White County, Arkansas a special plea and answer, copy of which is attached as Exhibit No. 7 and made a part hereof.

'7. On January 4, 1965, plaintiff filed a motion for default judgment, copy of which is attached as Exhibit No. 8 and made a part hereof.

'8. On January 14, 1965, defendant filed a response to plaintiff's motion for default judgment, copy of that response and exhibits being attached hereto as Exhibit No. 9 and made a part hereof.

'9. On January 26, 1965, plaintiff's attorney filed an affidavit with the Circuit Clerk of White County, Arkansas. A copy of that affidavit with attached exhibits 'A, B, C and D' is attached hereto as Exhibit No. 10 and made a part hereof.' ¹

At issue is an interpretation of certain provisions of Ark.Stat.Ann. § 27-342.2 (Repl.1962). Other provisions of this statute have been previously passed upon, but the particular point at issue has not heretofore been raised in this court. Pertinent to this determination are the following provisions of that section, as follows:

'Service of such process shall be made by serving a copy of the process on the said Secretary of State and such service shall be sufficient service upon the said nonresident owner, or nonresident operator, or chauffeur, or upon the resident owner, resident operator, or chauffeur who has subsequently absented himself physically from the State, or upon the executor, administrator or other legal representative of his estate in case he has not survived such accident or collision or has since died, provided that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff or his attorney to the defendant at his last known address * * *.'

Based on the facts set forth in the stipulation, we agree with appellant that the trial court erred in entering its default judgment, and further erred in refusing to set this judgment aside. It will be noted that appellee's attorney, on August 27, 1964, mailed a notice of the filing of the suit, a copy of the process, and a copy of the complaint, to appellant. It was not until the next day, August 28, that the summons was served on the Arkansas Secretary of State. This procedure, of course, did not comply with the actual provisions of the statute, for, under its clear terms, the statute provides that plaintiff, or his attorney, must mail to a defendant notice of the service of summons on the Secretary of State. Appellee argues that there was substantial compliance with the statute, and that appellant's insurance carrier had also been advised of the pendency of the action.

First, let it be said that we have held that this statute must be strictly construed. Kerr, Administrator v. Greenstein, 213 Ark. 447, 212 S.W.2d 1. ²

Next, it appears that all of the states that have passed upon similar (and in some cases, almost identical) acts have flatly held that notice must be sent by a plaintiff or his attorney after actual service of process on the statutory agent, and the mailing of notice before the actual service does not meet the requirements of the statute.

One of the leading cases on this point is State ex rel. Stevens v. Grimm, Circuit Judge, 192 Wis. 601, 213 N.W. 475. There, the Wisconsin plaintiff attempted to obtain service on a Minnesota defendant under the Wisconsin non-resident motorist statute. The pertinent part of that statute is almost identical with our own. It provides that service of process shall be made by serving a copy upon the Secretary of State 'and such service shall be sufficient service upon the said non-resident; provided, that notice of such service and a copy of the process are within ten days thereafter sent by mail by the plaintiff to the defendant * * *.' Appellee points out that the Wisconsin statute uses the word 'thereafter,' while our statute provides that after serving the Secretary of State, notice of the service and a copy of the process shall 'forthwith' be sent to the defendant. We do not agree that this word creates a substantial difference in the meaning of the Wisconsin statute and the Arkansas statute. Webster's Third New International Dictionary (unabridged) defines the word, 'forthwith,' as, '(1) with dispatch: without delay: within a reasonable time: immediately. (2) immediately after some precedent event: thereupon.' It is accordingly apparent that the word, 'forthwith,' in our statute means that the notice of the service and a copy of the process must be...