Mann v. Humphrey's Administratrix

• Decision Date: 05 February 1935
• Parties: Mann v. Humphrey's Administratrix.
• Court: United States State Supreme Court — District of Kentucky

257 Ky. 647

Mann v. Humphrey's Administratrix.

Court of Appeals of Kentucky. Common Pleas Branch, First Division.

Decided February 5, 1935.

1. Automobiles. — In action for death of one killed while riding in truck, allegation, that defendant owner of truck "at the time of the accident hereinabove referred to and at this time is a nonresident of this state," sufficiently alleged nonresidence under statute permitting service on Secretary of State; statute providing for constructive service by warning order upon nonresidents believed to be absent from state being inapplicable (Ky. Stats. Supp. 1933, secs. 12-1 to 12-6; Civil Code of Practice, secs. 39, 57, 58, 419).

2. Automobiles. — Where process is served on Secretary of State in compliance with statute in death action against nonresident automobile owner, personal judgment can be rendered against such nonresident defendant (Ky. Stats. Supp. 1933, secs. 12-1 to 12-6).

3. Process. — Strict compliance with statute providing for substituted

service must be observed, but provisions should not be read into such statutes which are not expressly stated or necessarily implied.

4. Automobiles. — Nonresident owner of automobile is not exempted from operation of statute providing for service on Secretary of State by fact that such owner has procured Kentucky license, in view of purpose of statute, which was to relieve injured person of being required to follow nonresident operator or owner of motor vehicle into another jurisdiction (Ky. Stats. Supp. 1933, secs. 12-1 to 12-6; Ky. Stats., sec. 2739g-5).

5. Statutes. — In construing statute, intention and meaning of Legislature must be ascertained and given effect from examination of whole act; and reason and spirit of law must be considered.

6. Statutes. — Where it can fairly be done, statute must be so construed as to accomplish purpose for which it was intended.

7. Automobiles. — State may, as condition precedent to use of its highways by nonresident motorist, require him to consent to appointment of Secretary of State as his agent upon whom service may be had in actions arising out of operation of his automobile within state (Ky. Stats. Supp. 1933, secs. 12-1 to 12-6).

Appeal from Jefferson Circuit Court

W.G. DEARING for appellant.

JOSEPH SCHMITT for appellee.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

Lewis W. Humphrey, an employee of the appellant, Dorothy L. Mann, was killed while riding in an automobile truck owned by his employer. At the time of the accident the truck was being operated by Albert Alexander, who also was employed by appellant. Lillie Maye Humphrey qualified as administratrix of Lewis W. Humphrey's estate and brought this action against Dorothy L. Mann and Albert Alexander for damages for the death of her intestate, alleged to have been caused by the defective condition of the truck and its negligent operation.

After alleging the facts and charging negligence, the petition contained the following averment:

"That although defendant's, Dorothy L. Mann's truck bore a Kentucky license, Jefferson County, #57-281, nevertheless defendant, Dorothy L. Mann, at the time of the accident hereinabove referred to and at this time is a nonresident of this state, now residing at 524 Belmont Street, Chicago, Illinois, and asks that service of process be served upon Miss Sarah Mahan, the Secretary of State of this Commonwealth of Kentucky, as her agent for the purpose of process."

A summons was issued directed to the sheriff of Franklin county, and a copy of the summons and an attested copy of the petition was delivered to the Secretary of State, who later filed with the clerk of the Jefferson circuit court a report of her action showing that she had performed the duties prescribed to her by chapter 80 of the Acts of 1930, now section 12-1 to section 12-6, inclusive, of the Supplement to the 1930 Statutes, which provides for the service of process in civil suits on nonresident operators or nonresident owners of motor vehicles operated within the commonwealth of Kentucky.

Dorothy L. Mann filed the following special demurrer:

"Now comes the defendant, Dorothy L. Mann, and without entering her appearance to this case files this, her special demurrer to the petition herein because the court has no jurisdiction of the subject matter by process served upon her according to law. That the defendant is a nonresident of the State of Kentucky and the petition shows that she is not operating the truck for her own individual benefit and therefore this court has no jurisdiction to have her served with process in the manner in which the same is served."

She later filed a motion to quash the return on the summons served on the Secretary of State. The special demurrer and the motion to quash service of summons were overruled. After a general demurrer had been overruled, appellant filed an answer which was a traverse and a plea of contributory negligence. On motion of the plaintiff the action was dismissed as to Albert Alexander, and on the trial of the case the jury returned a verdict against Dorothy L. Mann for the sum of $10,000.

A number of grounds were relied upon in the motion and grounds for a new trial, which was overruled; but no bill of exceptions has been filed, and the only ground relied upon on this appeal for a reversal of the judgment is the alleged error of the trial court in overruling the special demurrer and the motion to quash the return on the summons.

It is conceded that the constitutionality of chapter 80 of the Acts of 1930 has been settled by the cases of Hirsch v. Warren, 253 Ky. 62, 68 S.W. (2d) 767; Wuchter v. Pizzutti, 276 U.S. 13, 48 S. Ct. 259, 72 L. Ed. 446, 57 A.L.R. 1230; and Hess v. Pawloski, 274 U.S. 352, 47 S. Ct. 632, 71 L. Ed. 1091, and that the service of summons was in strict compliance with the provisions of the act, but the appellant contends that the petition not only fails to state facts showing that she belongs to the class of persons affected by the act, but affirmatively shows lack of jurisdiction on its face, and that consequently the special demurrer should have been sustained. It is argued that the petition fails to state that appellant, both at the time of the accident and when the petition was filed, was a nonresident of Kentucky and at the time the petition was filed was absent therefrom. In the paragraph of the petition heretofore quoted it is alleged that "Dorothy L. Mann at the time of the accident hereinabove referred to and at this time is a nonresident of this state, now residing at 524 Belmont Street, Chicago, Illinois." This sufficiently alleged the nonresidence of appellant.

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