Jones v. Garrett

• Citation: 192 Kan. 109,386 P.2d 194
• Decision Date: 02 November 1963
• Docket Number: Nos. 43316,43393 and 43425,s. 43316
• Parties: Arthur G. JONES, Appellee, v. David Lee GARRETT, Appellant.
• Court: United States State Supreme Court of Kansas

Page 194

386 P.2d 194

192 Kan. 109

Arthur G. JONES, Appellee, v. David Lee GARRETT, Appellant.

Nos. 43316, 43393 and 43425.

Supreme Court of Kansas.

Nov. 2, 1963.

Syllabus by the Court

1. The rule that statutes in derogation of the common law should be strictly construed has been made inapplicable in this state by legislative enactment. (G.S.1949, 60-102; G.S.1949, 77-109.)

2. 'Procedure' is the machinery for carrying on the suit, including pleading, process, evidence, and practice, whether in the trial court, or in the processes by which causes are carried to appellate courts for review, or in laying the foundation for such review.

3. 'Practice' is the form or mode or proceeding in courts for the enforcement of rights or the redress of wrongs, as distinguished from the substantive law which gives the right or denounces the wrong.

4. Procedure or practice is the mode or proceeding by which a legal right is enforced, that which regulates the formal steps in an action or other judicial proceedings.

5. The issuance or service of process is not what makes one a party to a suit; it is merely a step in obtaining jurisdiction of his person after he is a party to a suit.

6. There is no vested right in any particular remedy or method of procedure.

7. Generally, statutes will not be construed to give them a retroactive operation unless it clearly appears that such was the legislative intent. Nevertheless, when a change of law merely affects the remedy or law or procedure, all rights of action will be enforceable under the new procedure without regard to whether they accrued before or after such change of law and without regard to whether suit has been instituted or not, unless there is a saving clause as to existing litigation.

8. G.S.1961 Supp. ch. 8, art. 4, providing for service on secretary of state in case of motorist who is involved in an accident while a resident but who subsequently becomes a nonresident merely affected law of procedure and not the substantive law, and hence such statute is given retroactive application.

9. Although motor vehicle accident involving defendant occurred while defendant was resident of state and at time when statute did not provide for service through secretary of state on person who was resident at time of motor vehicle accident but who thereafter became nonresident and defendant was served through secretary of state after having left the state, service was sufficient to confer jurisdiction over defendant on court.

10. It is a valid exercise of the police power of this state to regulate, limit and control the use of its highways in order to promote the safety and general welfare of the people, and this power extends to use by nonresidents as well as residents.

11. The appointment by the legislature of the secretary of state as an agent of a defendant for service of process in suits arising from defendant's alleged negligence in the operation of his motor vehicle upon the highways of this state has been held a valid exercise of the police power.

12. In action against a serviceman a statute of limitations otherwise applicable is, by virtue of Soldiers' and Sailors' Civil Relief Act, tolled during period of military service. (Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.A.Appendix § 525.)

13. Under the provisions of the statute (G.S.1949, 60-759) great latitude is given to the trial court in the matter of amendment to pleadings with a view of curing defects, supplying omissions and preventing injustice.

14. Courts will guard the rights of parties by permitting amendments to be made where they will accomplish justice.

Aubrey Neale, Coffeyville, argued the cause, and Ray A. Neale, Coffeyville, and Jake L. Liberman, Caney, were with him on the briefs for appellant.

Simeon Webb, of Pittsburg, argued the cause, and was on the briefs for appellee.

WERTZ, Justice.

This was an action to recover damages for personal injuries sustained by plaintiff (appellee) Arthur G. Jones as a result of being struck by an automobile driven by defendant (appellant) David Lee Garrett upon the city streets of Caney.

On January 10, 1961, plaintiff filed his petition against defendant in the district court alleging that on July 30, 1959, the plaintiff, while working on the city street, was struck by an automobile being driven by the defendant; that as a direct and proximate result of the impact plaintiff suffered certain permanent injuries. The petition set forth certain specific acts of negligence on the part of the defendant that were the proximate cause of plaintiff's injuries. Plaintiff sought judgment in a specified amount.

At the time of the accident defendant was a resident of the state of Kansas and subject to service of process in this state until February 15, 1960, when he absented himself from the state as a member of the armed forces, and has been absent continuously since that date. Several attempts were made by plaintiff to obtain service of summons on defendant within the state, the last attempt being made February 23, 1961. On November 20 defendant appeared specially and moved to quash the latter service of summons, which motion was sustained by the trial court on March 20, 1962. On the same day plaintiff filed his second amended petition, which was identical with his first amended petition, and attached thereto an affidavit alleging the defendant was not at the time a resident of the state of Kansas, and requested summons be issued under the provisions of G.S.1961 Supp. ch. 8, art. 4; and on the same day the trial court made an order for service on the defendant by serving the secretary of state, pursuant to the mentioned statute. Summons was served on the secretary of state on March 31, 1962, and a copy of the summons and second amended petition was served on defendant by registered mail.

Subsequently defendant appeared specially and moved to quash the attempted service of summons for the reasons defendant was a resident of Kansas on the date of the accident, July 30, 1959, and that the court acquired no jurisdiction of the defendant by reason of the service from the secretary of state under the provisions of chapter 8, article 4, aforesaid, which law became effective July 1, 1961. Defendant's motion to quash was overruled, from which order defendant appeals.

Sequentially defendant demurred to the plaintiff's second amended petition on the ground the court had no jurisdiction. Pending hearing on this demurrer, plaintiff was granted permission, over defendant's objection, to again amend his petition to include the following:

'Comes now the plaintiff, Arthur G. Jones, and for his cause of action against the defendant above named, alleges and states:

'1. That he is a resident of and his correct post office address is 110 Shale, Coffeyville, Kansas; that defendant David Lee Garrett, is a resident of and his correct post office address is 108 West Third Street, Caney, Kansas; that said defendant, David Lee Garrett, after the cause of action herein stated against him arose, did depart from the state of Kansas on or about February 15, 1960, and has been absent from the state of Kansas as a member of the United States Air Force continuously from that date to the present time, and by reason thereof, the time subsequent to February 15, 1960, is not computed for the purpose of the running of the statute of limitations as the same pertains to this cause of action.'

On October 18, 1962, the court overruled defendant's demurrer to plaintiff's petition as finally amended, from which order defendant appeals.

At the time plaintiff's cause of action against defendant accrued, July 30, 1959, there was in force and effect G.S.1949, 8-401, which provided that the acceptance by a nonresident person of the rights and privileges conferred by existing laws to operate motor vehicles on the public highways of the state would be deemed equivalent to an appointment by such nonresident of the secretary of state to be his true and lawful agent, upon whom could be served all lawful process in any action or proceeding against said nonresident, growing out of any accident or collision in which said automobile might be involved, while such vehicle was operated in the state by such nonresident; and said acceptance or operation of said vehicle would be a signification of his agreement that any such process against him which was so served on the secretary of state would be of the same legal force and validity as if served upon him personally within the state.

The mentioned law was amended (G.S.1961 Supp. 8-401, effective July 1, 1961) by the addition of the following provision:

'(a) As used in this act, each of the following words and terms, unless the context clearly requires otherwise, shall have the meaning respectively ascribed to it in this section: (1) 'Nonresident' or 'nonresident person' shall mean: (A) A person who is a nonresident of this state; (B) a person who is a resident of this state and who departs from this state subsequent to the accident or collision from which the action or proceeding against him or his representative arose and remains absent from this state for thirty (30) days continuously, whether such absence is intended to be temporary or permanent; (C) a person who at the time of the accident or collision from which the action or proceeding against him arose was a resident of this state but who has subsequently thereto become a nonresident of this state; (2) 'representative' shall have the meaning respectively ascribed to it in subsection (1) of section 59-102 of the General Statutes of 1949.'

The remainder of the amended section reenacted the wording of the old law and was in full force and effect at the time the cause of action in the instant case arose.

The amended statute embodied no saving clause as to existing litigation. There is no dispute between the parties but that defendant Garrett was served with process in conformity with the 1961 law in force...