Kelso v. Bush

• Decision Date: 23 December 1935
• Docket Number: No. 4-4190.,4-4190.
• Citation: 89 S.W.2d 594
• Parties: KELSO v. BUSH, Judge.
• Court: Arkansas Supreme Court

Page 594

89 S.W.2d 594

KELSO v. BUSH, Judge.

No. 4-4190.

Supreme Court of Arkansas.

December 23, 1935.

Rehearing Denied January 20, 1936.

Original proceeding in prohibition by Mrs. R. M. Kelso against Dexter Bush, Circuit Judge, to restrain proceedings in an action pending in Circuit Court.

Writ of prohibition denied.

Buzbee, Harrison Buzbee & Wright, of Little Rock, for appellant.

J. H. Lookadoo and Joseph Callaway, both of Arkadelphia, for appellee.

JOHNSON, Chief Justice.

This is an original proceeding in prohibition, instituted by Mrs. R. M. Kelso against respondent, Dexter Bush, circuit judge, to restrain proceedings in a certain action pending in the Clark county circuit court. The pending action sought to be restrained is for damages for personal injuries sustained in an automobile collision which occurred upon a state highway in Clark county and in which petitioner's automobile participated.

Petitioner is a nonresident of the state and service of process was had upon her in the action pending in the Clark county circuit court as prescribed by section 1 of Act No. 39 of 1933 (page 111). The question presented for consideration in this proceeding is the constitutionality of said act. Section 1 provides: "Section 1. From and after the passage and approval of this Act the acceptance by a non-resident owner, chauffeur, operator, driver of any motor vehicle, except such nonresident owners as may have a designated agent, or agents, within this State upon whom valid and binding service of process may be had under the laws of this State, of the rights and privileges conferred by the laws of the State of Arkansas to drive or operate or permit or cause to be operated or driven a motor vehicle upon the public highways of said State as evidenced by his or its operating or causing or permitting a motor vehicle to be operated or driven thereon or the operation by a non-resident owner or the causing or permitting by such non-resident owner of a motor vehicle to be operated on such highway in the State of Arkansas shall be deemed equivalent to the appointment by such non-resident owner whether such nonresident owner be an individual, firm or corporation, of the Secretary of the State of Arkansas or his successor in office to be the true and lawful attorney and agent of such non-resident owner upon whom may be served all lawful process in any action or proceeding against him or against any such person, firm or corporation growing out of any accident or collision in which said non-resident owner or any agent, servant or employee of any such non-resident owner may be involved while operating a motor vehicle on such a way, and said acceptance or operation shall be a signification of the agreement of any such person, firm or corporation that any such process against any such person, firm or corporation which is so served shall be of the same legal force and validity as if served on such person, firm or corporation personally. 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 non-resident owner, 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, and the defendant's return receipt or the affidavit of the plaintiff or his attorney of compliance herewith are appended to the writ or process and entered and filed in the office of the Clerk of the Court wherein said cause is brought. The court in which the action is pending may order such continuance as may be necessary to afford the defendant or defendants reasonable opportunity to defend the action."

In consideration of the contention urged, it is a cardinal rule of construction that all legislative enactments are presumed to be constitutional and valid. Patterson v. Temple, 27 Ark. 202; Leach v. Smith, 25 Ark. 246; and that all doubts in reference to the constitutionality of statutes must be resolved in favor of validity. Stillwell v. Jackson, 77 Ark. 250, 93 S.W. 71; Graham v. Nix, 102 Ark. 277, 144 S.W. 214; Arkansas, L. & G. Ry. Co. v. Kennedy, 84 Ark. 364, 105 S.W. 885; Duke v. State, 56 Ark. 485, 20 S.W. 600; Carson v. St. Francis Levee Dist., 59 Ark. 513, 27 S.W. 590; Leep v. St. Louis, I. M. & S. Ry. Co., 58 Ark. 407, 25 S.W. 75, 23 L.R.A. 264, 41 Am.St.Rep. 109.

The first contention is that section 1 denies to petitioner due process of law under the State and Federal Constitutions (Const. Ark. art. 2, § 8; Const.U.S.Amend. 14).

The constitutionality of a state statute (St.Mass. 1923, c. 431, § 2) almost identical in terms to that of section 1 of Act No. 39 of 1933 was sustained by the Supreme Judicial Court of Massachusetts in Pawloski v. Hess, 253 Mass. 478, 149 N.E. 122, and that it afforded due process of law to the nonresident defendant was sustained by the Supreme Court of the United States in Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091.

Petitioner recognizing the force of the opinion just cited, contends that section 1 of Act No. 39, supra, differs from this legislative enactment in that the Massachusetts statute provides that notice to the nonresident defendant must be sent by registered mail and the Arkansas statute requires only that such notice be sent to the "last known address" of such nonresident defendant; also that the Massachusetts statute requires the nonresident defendant's return receipt whereas the Arkansas statute is satisfied with the nonresident defendant's return receipt or the affidavit of the plaintiff or his attorney of compliance. That this difference of phraseology is of substance we are cited the case of Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 260, 72 L.Ed. 446, 57 A.L.R. 1230. The last cited case arose under a statute of New Jersey (P.L. 1924, p. 517 [Comp.St. 1924, § 135—93 et seq.]) and the court there stated the pertinent inquiry to be, "The question made in the present case is whether a statute, making the secretary of state the person to receive the process, must, in order to be valid, contain a provision making it reasonably probable that notice of the service on the secretary will be communicated to the nonresident defendant who is sued. Section 232 of the Laws of 1924 makes no such requirement and we have not been shown any provision in any applicable law of the state of New Jersey requiring such communication."

The court then disposed of the inquiry by saying, "We think that a law with the effect of this one should make a reasonable provision for such probable communication. We quite agree, and, indeed, have so held in the Pawloski Case, that the act of a nonresident in using the highways of another state may be properly declared to be an agreement to accept service of summons in a suit growing out of the use of the highway by the owner of the automobile, but the enforced acceptance of the service of process on a state officer by the defendant would not be fair or due process unless such officer or the plaintiff is required to mail the notice to the defendant, or to advise him, by some written communication, so as to make it reasonably probable that he will receive actual notice. Otherwise, where the service of summons is limited to a service on the secretary of state or some officer of the state, without more, it will be entirely possible for a person injured to sue any nonresident he chooses, and through service upon the state official obtain a default judgment against a nonresident who has never been in the state, who had nothing to do with the accident, or whose automobile having been in the state has never injured anybody."

The language of the opinion quoted does not justify petitioner's position that an enactment which does not require a receipt from the nonresident defendant does not afford due process of law. As we view the opinion, the pertinent inquiry is: Does the enactment require such "written communication, so as to make it reasonably probable that he [the non-resident defendant] will receive actual notice" of the pendency of the suit? In other words, if actual notice to the nonresident defendant is provided for with reasonable certainty in the enactment, it will suffice to afford due process. This conclusion is made certain when we consider other language in the opinion where the court was considering the sufficiency of all legislation imposed against all nonresident automobile owners as follows: "Every statute of this kind, therefore, should require the plaintiff bringing the suit to show in the summons to be served the post office address or residence of the defendant being sued, and should impose either on the plaintiff himself or upon the official receiving service or some other, the duty of communication by mail or otherwise with the defendant."

This language in our opinion demonstrates that the court did not intend to restrict all state legislation against nonresident owners of automobiles operated on the highways of the respective states to such only as might sign a receipt showing actual knowledge of the pendency of the suit, but that such actual knowledge or notice might be shown by such receipt or by written communication transmitted by the plaintiff in the suit or by some other method equally effectual. It must be remembered that the New Jersey act condemned by the court provided no method or means by which actual...