Law's Adm'r v. Culver
Decision Date | 03 November 1959 |
Docket Number | No. 1880,1880 |
Citation | 155 A.2d 855,121 Vt. 285 |
Parties | Gary M. LAW'S ADMINISTRATOR v. Charles D. CULVER. |
Court | Vermont Supreme Court |
Joseph W. Foti, Montpelier, A. Pearley Feen, Burlington, for plaintiff.
Edmunds, Austin & Wick, Burlington, for defendant.
Before HOLDEN, SHANGRAW, BARNEY, SMITH, JJ., and MORRISON, Supr. J.
This is an action of tort and arose out of a motor vehicle accident which occurred at Berlin, Vermont, on July 24, 1955. The action is brought for the benefit of the next of kin of plaintiff's intestate pursuant to V.S. 47, §§ 2926 and 2927, now 14 V.S.A. §§ 1491 and 1492. The administrator also seeks, in this action, to recover for bodily hurt to the intestate pursuant to V.S. 47, §§ 2922 and 2923, now 14 V.S.A. §§ 1452 and 1453. All parties were residents of Vermont at the time the accident occurred. Plaintiff was appointed administrator on August 17, 1955. The writ is dated November 7, 1957 and was served on the commissioner of motor vehicles November 14, 1957. Thus the action was commenced more than two years after the death of plaintiffs' intestate, and more than two years after the plaintiff's appointment as administrator.
The defendant answered and pleaded a general denial. He also pleaded that the action for the wrongful act, as provided for by 14 V.S.A. §§ 1491 and 1492, was not instituted within two years from the date of the decease of the intestate, Gary N. Law, and further that the action for the recovery of damages for bodily hurt to the intestate, brought pursuant to 14 V.S.A. §§ 1452 and 1453, was not instituted within two years from the date of such appointment as administrator, as required by V.S. 47, § 1705, now 12 V.S.A. § 557.
The plaintiff filed a replication stating that he ought not to be barred from maintaining the action because after the cause of action accrued and since August 1956 the defendant was absent from and residing out of the state, to wit, in Massachusetts, and had no known property in the state which, by common process of law, could be attached. The defendant demurred to the replication on the ground that the defendant was deemed to have appointed the commissioner of motor vehicles of Vermont as his true and lawful attorney upon whom lawful process could have been served in this action by virtue of V.S. 47, § 10062, No. 209 of the Acts of 1951, now 12 V.S.A. § 891. The demurer was overruled, defendant allowed exceptions, and the cause passed to this Court before final judgment pursuant to the provisions of V.S. 47, § 2124, now 12 V.S.A. § 2428.
14 V.S.A. § 1492 in part provides:
A survival action brought for bodily hurt pursuant to 14 V.S.A. §§ 1452 and 1453 must be brought within two years from the date of issuance of the letters of administration, and not thereafter. 12 V.S.A. § 557. In such case V.S. 47, § 1702, now 12 V.S.A. § 552, contains a provision nearly identical to that above quoted which also suspends the running of the statute during defendant's absence from the state.
The obvious purpose of limitations of actions statutes is to make necessary the bringing of an action within a reasonable time and thus prevent fraudulent and stale claims from being brought at a time when witnesses have died or disappeared and documentary evidence has been lost or destroyed. Reed v. Rosenfield, 115 Vt. 76, 79, 51 A.2d 189. The purpose of the tolling or suspension provisions in such statutes is to enable a plaintiff to have the full term of limitation in which to bring his action. In other words to preserve a plaintiff's right of action during the time when it is impossible to serve process personally on a defendant or attach his property in this state. Reed v. Rosenfield, supra, 115 Vt. at page 79, 51 A.2d at page 191.
In that service of the writ was made on the commissioner of motor vehicles the principal question raised for our determination is, what effect, if any, V.S. 47, § 10062, No. 209 of the Acts of 1951, has on the limitations of action statutes under consideration. This section, as amended, now reads:
The following section, V.S. 47, § 10063, as amended by the Acts of 1951, now 12 V.S.A. § 892, provides for a manner of service upon the commissioner of motor vehicles, and therein states '* * * Such manner of service shall be in addition to all existing manner of service, rights and remedies.' The statute providing for substituted service in this case is therefore not exclusive.
Prior to the amendment of 1951 the word 'person' as appears in the above statute read 'nonresident'. In other words by the amendment 'nonresident' was changed to read 'person'. V.S. 47, § 10062, before the amendment, was first construed in connection with P.L. § 2860, (14 V.S.A. § 1492) in the case of Reed v. Rosenfield, supra, and at pages 79 and 80 of 115 Vt., at page 191 of 51 A.2d, this Court therein stated: The statute, ...
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...it, may not thereafter attack that statute as unconstitutional." Id. at 103, 40 A.2d at 539. Similarly, in Law's Administrator v. Culver, 121 Vt. 285, 290, 155 A.2d 855, 858 (1959), we rejected plaintiff's claims that the Vermont statute under which he successfully effected service on a non......
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...that a copy of such process * * * is sent by the plaintiff to the defendant by registered mail." (Italics supplied.) Law's Adm'r v. Culver, 121 Vt. 285, 155 A.2d 855 (1959), states that "It is apparent that the legislature intended by the amendment of 1951 to make the statute applicable to ......
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...service on the Commissioner by mailing a copy of that service to defendant to satisfy due process concerns. Law's Adm'r v. Culver, 121 Vt. 285, 290, 155 A.2d 855, 858 (1959), overruled on other grounds by Andrews v. Stam, 2007 VT 79, ¶ 6, 182 Vt. 482, 939 A.2d 455. Thus, if the Commissioner......
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