State ex rel. Johnson v. District Court of Fourth Judicial Dist.

• Decision Date: 14 July 1966
• Docket Number: No. 11101,11101
• Citation: 417 P.2d 109,148 Mont. 22
• Parties: STATE of Montana ex rel., Bror V. JOHNSON, Relator, v. The DISTRICT COURT OF the FOURTH JUDICIAL DISTRICT et al., Respondent.
• Court: Montana Supreme Court

Page 109

417 P.2d 109

148 Mont. 22

STATE of Montana ex rel., Bror V. JOHNSON, Relator, v. The DISTRICT COURT OF the FOURTH JUDICIAL DISTRICT et al., Respondent.

No. 11101.

Supreme Court of Montana.

Submitted April 7, 1966.

Decided July 14, 1966.

Gene I. Brown (argued), Bozeman, for relator.

William E. Jones (argued), Missoula, for respondent.

DOYLE, Justice.

On petition of the relator, this court issued an alternative order to show cause. The petition disclosed that on November 22, 1965, in the respondent district court, relator filed a complaint naming St. Patricks Hospital and Stephen L. Odgers as defendants, wherein damages were sought for negligently leaving a surgical sponge in the hip of Mr. Johnson.

Summons was issued on November 22, 1965, and the defendant doctor was served in the State of California.

The defendant doctor, in support of a motion to dismiss, filed an affidavit; two pertinent paragraphs of this affidavit are as follows:

'Summons in this case was served upon STEPHEN L. ODGERS in the State of California. No service was made on STEPHEN L. ODGERS within the territorial limits of the State of Montana prior to January 1, 1962. The incident upon which the complaint is based took place in the State of Montana on or about March 28, 1955.

'STEPHEN L. ODGERS has not been a resident or citizen of the State of Montana on or after January 1, 1962, nor has STEPHEN L. ODGERS transacted any business within this state or entered into a contract for services to be rendered in this State or committed any act which resulted in accrual of a tort action within this state on or after January 1, 1962.'

On January 10, 1966, the respondent district court quashed the return of the service of summons and complaint upon Dr. Odgers.

As an aside, we are informed that the defendant, St. Patricks Hospital, has successfully interposed a defense of the statute of limitations, which matter is now on appeal here. We have not and do not deal with the propriety of the original proceeding here, because we feel it self-evident that the remedy at law is not otherwise sufficient.

Upon the return date of the alternative order to show cause, the respondent court appeared and filed a brief.

The fact situation as alleged is summarized as follows:

On March 28, 1955, relator was a patient of the doctor in a Missoula hospital where an operation was performed on relator's hip and a steel hip was inserted while the patient was under anesthetic; that the doctor and hospital left a surgical sponge in the hip; that on December 5, 1962, relator noticed several pieces of surgical gauze come out of the draining sinus of the hip which were removed; and that about July 1, 1965, the sinus again started to drain and limited the business activities of the relator and restricted his social and business affairs to his damage as the result of the carelessness and negligence of the hospital and respondent doctor.

Two questions present themselves: (1) The application of Rule 4, M.R.Civ.P., and the construction of Rule 86(a), both Rules adopted on January 1, 1962.

Rule 4, M.R.Civ.P., so far as pertinent reads:

'B. Jurisdiction of Persons. (1) Subject to Jurisdiction. All persons found within the state of Montana are subject to the jurisdiction of the courts of this state. In addition, any person is subject to the jurisdiction of the courts of this state as to any claim for relief arising from the doing personally, through an employee, or through an agent, of any of the following acts:

'(a) the transaction of any business within this state;

'(b) the commission of any act which results in accrual within this state of a tort action; * * *

'(e) entering into a contract for services to be rendered or for materials to be furnished in this state by such person; or * * *

'(2) Acquisition of Jurisdiction. Jurisdiction may be acquired by our courts over any person through service of process as herein provided; * * *

'D (3) Personal Service Outside the State. Where service upon any person cannot, with due diligence, be made personally within this state, service of summons and complaint may be made by service outside this state in the manner provided for service within this state, with the same force and effect as though service had been made within this state.'

Rule 86(a) M.R.Civ.P., in part reads:

'(a) Effective Date and Application to Pending Proceedings. These Rules will take effect on January 1, 1962. They govern all proceedings and actions brought after they take effect, and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible, or would work injustice, in which event the procedure existing at the time the action was brought applies.'

The respondent argues persuasively that Rule 4, subd. B(1), as a matter of elementary grammar, precludes the Rule from conferring jurisdiction based on the fact situation presented. He contends that the part of the Rule reading 'is subject to the jurisdiction * * * from the doing' is equivalent to 'is subject to the jurisdiction * * * from the doing or having done.' He insists that the participial form 'doing' is in the present tense, 'having done' is in the past tense. Hence, the Rule cannot confer jurisdiction based on acts committed before the date of enactment.

Respondent also urges that Rule 86(a) is applicable only to a cause of action which accrues after the effective date of the adoption of the Rule, by the clause in the Rule which states 'They govern all proceedings and actions brought after they take effect, and also all further proceedings in actions then pending.' The contention being that the Rule is silent on actions that might have accrued prior to the effective date of the Rules and in which no suit has yet been filed. Hence, runs the argument that Rule 86(a) was never meant to apply by the exclusion of reference to an accrued action which predated the Rule and which action has not been filed.

In support of this theory respondent quotes section 12-201, R.C.M. 1947, on statutory construction which reads: 'No law contained in any of the codes or other statutes of Montana is retroactive unless expressly so declared.'

Respondent's position summarized is that both Rule 4, subd. B(1) and Rule 86(a) expressly refer to the present and future, and not to the past.

This court was confronted with this identical problem, a challenge of our longarm statute, in Cause No. 10639, entitled State ex rel. Gilbert & Barker Manufacturing Company, a Massachusetts Corporation v. District Court, 142 Mont. 615, 385 P.2d 278. In this case, an application for a writ of prohibition was filed seeking to quash service of summons outside Montana; the writ was denied and the proceedings ordered dismissed.

Respondent is adamant that the two Rules in question are substantive law. The major premise of substantive law can be broadly defined as that law which creates duties, rights and obligations.

In support of this premise Chapman v. Davis, 233 Minn. 62, 45 N.W.2d 822, is cited wherein the Minnesota Supreme Court in ruling on its Motor Safety Responsibility Act held that the record disclosed that the defendant was a resident of the state for nearly a year after the tort and the 'longarm' statute did not apply. That court also noted that the Safety Responsibility Act specifically stated that 'This Chapter shall not apply to any accident or violation * * * occurring prior to the effective date of Laws of 1945.' Rule 4,...