Nelson v. Richardson

• Decision Date: 16 May 1938
• Docket Number: Gen. No. 40008.
• Citation: 295 Ill.App. 504,15 N.E.2d 17
• Parties: NELSON v. RICHARDSON ET AL.
• Court: United States Appellate Court of Illinois

295 Ill.App. 504

15 N.E.2d 17

NELSON

v.RICHARDSON ET AL.

Gen. No. 40008.

Appellate Court of Illinois, First District, First Division.

May 16, 1938.

Appeal from Superior Court, Cook County; M. L. McKinley, Judge.

Action by Leona Nelson against Guy A. Richardson and another, as receivers of the Chicago Railways Company, M. E. Overlease, and others, for injuries allegedly sustained while a passenger on a street car. From a judgment of dismissal as to defendant M. E. Overlease, plaintiff appeals.

Affirmed.

Henry Mitgang, of Chicago, for appellant.

Wetten, Pegler & Dale, of Chicago, for appellee M. E. Overlease.

McSURELY, Justice.

This appeal by plaintiff presents the question whether the statute of limitations is tolled by the nonresidence of a defendant who was not made a party defendant until after the statutory period of limitations had expired, although service of summons could have been made upon his representative at any time within this period.

It is alleged plaintiff was injured December 27, 1934, while a passenger on a street car operated in Chicago, Cook county, Ill., by the street car companies named; those defendants were duly served with summons.

August 5, 1937, or approximately two years and seven months after the cause of action accrued, by leave plaintiff filed an amended complaint in which she alleged she was injured in a collision between a street car in which she was riding and a truck owned and operated by M. E. Overlease (hereafter called defendant), a resident of the state of Indiana. Following the procedure prescribed in section 20a, Motor Vehicles Act, Ill.Rev.Stats.1937, c. 95 1/2, § 23, defendant Overlease was served by filing a copy of the summons August 10, 1937, with the secretary of state of Illinois.

Defendant moved the trial court that the cause be dismissed as to her for the reason that it was barred by the statute of limitations, which provides that actions for damages for an injury to the person shall be commenced within two years next after the cause of action accrued. Chapter 83, section 15, Ill.Rev.Stat.1937, section 14, Limitations Act. The court being of the opinion that as the pleadings showed that Overlease was made a defendant and a party to the action more than two years after the right of action accrued, plaintiff's action was barred by the statute and ordered the cause dismissed as to her, and plaintiff appeals.

Plaintiff relies on section 18 of the Limitations Act, Ill.Rev.Stat.1937, c. 83, § 19, which provides that: “If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the times herein limited, after his coming into or return to the state * * *.” Plaintiff argues that, as defendant was out of the state continuouslyfrom the time the cause of action accrued until the filing of the amended complaint, defendant is “out of the state” within the meaning of section 18, and that the statute is tolled during the period of nonresidence. Story v. Thompson, 36 Ill.App. 370, and Janeway v. Burton, 201 Ill. 78, 66 N.E. 337, are cited in support. These cases are not in point. They simply applied the provision of the statute touching the absence of a defendant from the state. The defendants in those cases had no agent or representative in this state upon whom service could be had, which is the decisive point in the instant case.

Statutory provisions touching the right of a nonresident to the benefit of statutes of limitations, as affected by the fact that he was subject to service of process during nonresidence, have been the subject of conflicting opinions in other jurisdictions.

One of the leading cases cited in support of plaintiff's position that the statute is tolled during the absence of the defendant from the state is Bode v. Flynn, 213 Wis. 509, 252 N.W. 284, 94 A.L.R. 480. The theory of that decision apparently is that the Legislature in enacting the Motor Act did not in express terms make any exception to the tolling statute, and also that it is the duty of a debtor to seek his creditor to pay his debt at the latter's domicile, and, as the nonresident tort-feasor violated that duty by staying out of the injured person's domicile, he would not be allowed to take advantage of the statute under which service can be had upon a nonresident. Other cases to the same effect are Anthes v. Anthes, 21 Idaho 305, 121 P. 553;Roth v. Holman, 105 Kan. 175, 182 P. 416;Keith-O'Brien Co. v. Snyder, 51 Utah 227, 169 P. 954.

In 94 A.L.R. 486, it is stated that the courts so holding are in the minority, and a list of cases holding to the contrary is given. Conspicuous among these is Coombs v. Darling, 116 Conn. 643, 166 A. 70. In Connecticut service on a non-resident may be had upon the motor vehicle commissioner of the state; the court held that the obvious purpose of this statute is to afford a means by which the equivalent of personal service might be made upon a nonresident although he was not actually within the state, and that, as there are no limitations of time within which the substituted service must be had, the regular statutory limitations to all tort actions applies and fixes the limit of time for such service of process. This opinion is squarely in point and well reasoned. Other cases which are in principle in accord with the Connecticut case are Niblack v. Goodman, 67 Ind. 174, 198;Penley v. Waterhouse, 1 Iowa 498;Dent v. Jones et al., 50 Miss. 265;Garth v. Robards, 20 Mo. 523, 64 Am.Dec. 203;Blodgett v. Utley, 4 Neb. 25;Green v. Snyder, 114 Tenn. 100, 84 S.W. 808;Rutland Marble Co. v. Bliss, 57 Vt. 23, 30;Crowder v. Morphy, 61 Wash. 626, 112 P. 742. To this list might be added Malakoff v. Frye, 158 Misc. 171, 284 N.Y.S. 22. The decision of that case rests upon the general theory that, where personal service of summons, or its equivalent, could be had, absence from the state does not suspend the running of the statute of limitations. In Walker v. L. E. Meyers Const. Co., 175 Okl. 548, 53 P.2d 547, it was held that, if process can be...