Reed v. Rosenfield.

• Decision Date: 04 February 1947
• Docket Number: No. 1160.,1160.
• Citation: 51 A.2d 189
• Court: Vermont Supreme Court
• Parties: REED v. ROSENFIELD.

51 A.2d 189

REED

v.ROSENFIELD.

No. 1160.

Supreme Court of Vermont.

Feb. 4, 1947.

Exceptions from Windham County Court; Black, Presiding Judge.

Action under Lord Campbell's Act by Clarence Reed, administrator of the estate of Eleanor Robbins Reed, deceased, against Herbert Rosenfield to recover for the death of the deceased. The plaintiff's demurrer to the defendant's plea of limitations was overruled, and the plaintiff brings exceptions.

Judgment affirmed, and judgment for defendant for costs.

Ernest F. Berry and Barber & Barber, all of Brattleboro, for plaintiff.

Ryan, Smith & Carbine, of Rutland, for defendant.

Before MOULTON, C. J., and STURTEVANT, SHERBURNE, BUTTLES, and JEFFORDS, JJ.

JEFFORDS, Justice.

This is an action brought under Lord Campbell's Act, P.L. 2859. It was not commenced until more than two years after the death of the person, allegedly caused by the negligent operation of a motor vehicle by the defendant who at all times here material was absent from and resided out of this State.

The case was disposed of below on pleadings and sent to us under the provisions of P.L. 2072. The defendant pleaded the two year statute of limitations set forth in P.L. 2860. To this plea the plaintiff demurred. The demurrer was overruled with exceptions to the plaintiff.

The accident in question occurred while the defendant was driving his automobile in this State and the main question raised for our determination is what bearing, if any, P.L. 5001 has on P.L. 2860.

P.L. 5001, as amended by No. 117 of the Acts of 1935, is to the effect that the operation of a motor vehicle in this State by a non-resident thereof is equivalent to an appointment by such non-resident of the commissioner of motor vehicles as the non-resident's attorney upon whom process may be served in any action against the non-resident growing out of any accident in this State in which a motor vehicle operated or caused to be operated by him may be involved and that process which is so served shall be of the same force and validity as if served on the non-resident personally.

The writ in this case was served on the commissioner of motor vehicles. P.L. 2860 in speaking of actions brought under P.L. 2859 as far as here material provides as follows: ‘Such action shall be brought in the name of the personal representative of such deceased person and commenced within two years from his decease, but if the person against whom such action accrues is out of the state, the action may be commenced within two years after such person comes into the state; and if, after such cause of action accrues and before such two years have run, the person against whom it accrues is absent from and resides out of the state, and has not known property within the state which can by common process of law be attached, the time of his absence shall not be taken as part of the time limited for the commencement of the action; * * *.’

The defendant's contention in substance is that because he was at all times after the accident amendable to service of process upon his attorney, the commissioner of motor vehicles, under P.L. 5001 he was not ‘absent from * * * the state’ within the meaning of P.L. 2860 and, as a consequence, the two year statute of limitations contained therein was not tolled because of the fact that he actually was absent from and resided out of the state during that time. This is a question of first impression with us but it has been presented and decided in other jurisdictions. See Annotations in 94 A.L.R. 485 and 119 A.L.R. 859. The cases appearing in these Annotations show that the authorities are divided. One set take what may be called a strict view and hold that the tolling of the limitation time by absence from and residence outside of the state is not affected by amenability to service under statutes similar to P.L. 5001. Other cases take what may be termed a liberal view and hold to the contrary. This latter view is considered to be held by the majority of the courts which have passed on this question. See 94 A.L.R. 486.

According to the literal terms of P.L. 2860 the plaintiff is entitled to the tolling of the statute but this fact is not decisive if, as we believe to be so, there is room here for statutory construction. ‘If it can fairly be done, a statute must be so construed as to accomplish the purpose for which it is intended, and the intention and meaning of the Legislature are to be ascertained and given effect, not from the letter of the law which is not in all cases a safe guide, but from an examination of the whole and every part of the act, the subject-matter, the effects and consequences, and the reason and the spirit of the law, although the intention and meaning thus ascertained conflict with the literal sense of the words.’ First Nat. Bk. v. Harvey, Com'r of Taxes, 111 Vt. 281, 290, 16 A.2d 184, 187; Brammall v. LaRose, 105 Vt. 345, 349, 165 A. 916, and cases cited. ‘A thing which is within the intention of the Legislature, though not within its letter, is as much within the statute as if it was within the letter.’ Smith & Son v. Hartford, 109 Vt. 326, 330, 196 A. 281, 283. We are required to disregard even the plain letter of a statute if necessary to give it the effect which the Legislature evidently intended it should have. In re Estate of Curtis, 88 Vt. 445, 451, 92 A. 965.

In Arrowood v. McMinn County, 173 Tenn. 562, 121 S.W.2d 566, 568, 119 A.L.R. 855, a case like the one here, it is stated, quoting from an earlier case from that jurisdiction, that ‘What is not within the purpose or meaning, nor within the mischief to be remedied by a statute, cannot be held included in the law, even though literally the language might include it. We take this to be a...