Tarter v. Insco

• Decision Date: 08 June 1976
• Docket Number: No. 4523,4523
• Citation: Tarter v. Insco, 550 P.2d 905 (Wyo. 1976)
• Parties: John R. TARTER, Administrator of the Estate of William E. Fristam, Deceased, Appellant (Plaintiff below), v. Michelle INSCO, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 905

550 P.2d 905

John R. TARTER, Administrator of the Estate of William E. Fristam, Deceased, Appellant (Plaintiff below), v.Michelle INSCO, Appellee (Defendant below).

No. 4523.

Supreme Court of Wyoming.

June 8, 1976.

Franklin J. Smith, of Pattno & Smith, Cheyenne, for appellant.

Larry Lawton, of Guy, Williams & White, Cheyenne, for appellee.

Before GUTHRIE, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and ARMSTRONG, D. J., Retired.

ROSE, Justice.

William E. Fristam came to his death on November 24, 1971.A wrongful death action was filed November 16, 1973.¹Purported service was made March 21, 1974, by filing with the Secretary of State, According to the requirements and provisions of § 1-52, W.S.1957, 1975 Cum.Supp.²At the time of the accident, defendant-appellee was a resident of Wyoming, but could not be located when the action was filed.Defendant filed an answer and moved for summary judgment, invoking the two-year statute of limitations provided in § 1-1066, W.S.1957.

The arithmetic shows that service was not had on the Secretary of State within two years from the date of the accident.In fact, service was not made for two years plus 118 days.

Defendant's theory is that the action must be commenced and service made within the two years contemplated by § 1-1066 unless the timely commencement of the action is perfected by service within sixty days of the filing, as provided by Rule 3 of the Wyoming Rules of Civil Procedure.³Since service was not had within the time frames contemplated by § 1-1066andRule 3, argues the defendant, the action is barred.

The plaintiff-appellant contends that § 1-1066 is tolled by § 1-24, W.S.1957, ⁴ for the reasons that defendant had been outside the state and had avoided process and concealed herself.

The court made findings of fact as follows:

'1.That the defendant's actions in moving from place to place were motivated by economic circumstances and a desire to obtain a college education, and were not for the purpose of concealing herself or avoiding service of process.

'2.That the Defendant was absent from the State of Wyoming for substantially longer than 125 days in the two-year period after November 24, 1971.

'3.That William E. Fristam died on November 24, 1971, as a result of a collision between a vehicle operated by him and one operated by the Defendant.

'4.That his lawsuit was filed on November 16, 1973.

'5.That valid service was obtained on March 21, 1974, by serving the Secretary of State, the Defendant being outside of the State of Wyoming, from sometime before November 16, 1973, until after March 21, 1974.

'6.That 125 days passed between the filing of this lawsuit and service of process upon the Defendant.'

The court made the following conclusions of law:

'1.That the statute of limitations applicable to this lawsuit is two years, as contained in Section 1-1066(d), Wyoming Statutes, 1957.

'2.That this lawsuit was commenced two years and 118 days after the cause of action occurred.

'3.That the applicable Statute of Limitations is a bar to this action.

'4.That Section 1-24, Wyoming Statutes, 1957, has no application to this case by virtue of the facts set out herein; . . .'

THE ISSUE

The real and only issue may be delineated as follows:

Does the defendant's absence from the state toll the statute of limitations by reason of the applicability of § 1-24, W.S.1957, where the defendant could have veen served at any time through substituted service upon the Secretary of State?

This is defined as the issue by the appellant when he says in his brief to this court:

'. . . The real issue raised is whether or not a tolling statute such as Wyoming Statutes § 1-24(1957) applies in the circumstance where provision is made for service upon a designated agent for process such as the Secretary of State as outlined in Wyoming Statutes § 1-52(1957) . . .'

OPINION

The position of the appellant in this appeal represents a relatively small and ever-diminishing minority view.⁵It is argued that the provisions of § 1-24, W.S.1957, are clear and that for us not to give meaning and application to the plain language of the statute is to judicially legislate.Appellant says there is no ambiguity-and no need for construction since resort to construction may be had only where the statutes are found to be ambiguous.Zanetti Riverton Bus Lines, Inc. v. State Board of Equalization, Wyo., 485 P.2d 387;Town of Clearmont v. State highway Commission, Wyo., 357 P.2d 470.

We find our point of departure with appellant's logic to be in the porposition that, while the statute(§ 1-24) is not ambiguous-neither is it applicable.

While we have not passed upon the effect of the non-resident motorist statute upon the statute of limitations, many other states have.The great majority have held that where there is provision for substituted service the tolling statute is inapplicable and the limitation statute means what it says.(Supra, Note 5)

It was said in Busby v. Shafer, 75 S.Dak. 428, 66 N.W.2d 910, 911(1954), where the lower court had applied the tolling statute, the supreme court reversing:

'. . . where provision is made by statute for substituted service of process upon a state official in cases arising out of motor accidents within the state the provision makes the defendant as amenable to process as if he resided within the state and has the effect of nullifying any statute suspending the period of limitations . . .'

The reason behind such a ruling was expressed in Bolduc v. Richards, 101 N.H. 303, 142 A.2d 156, 158(1958), where the Supreme Court of New Hampshire said:

'There are compelling considerations of policy favoring the majority rule since to hold otherwise would allow suits to be postponed indefinitely.In automobile cases which depend to a great degree on eye witnesses and their memories, the evil results of delay are obvious . . .'The court, in Bolduc, goes on to say:

'. . . Had the Legislature desired to change existing law so as to afford the plaintiff the latitude of permitting him to allow his case to drag on indefinitely at his option, even though he could get valid service upon the defendant, so long as the latter remained out of the state, it presumably would have said so . . . we believe the considerations in favor of . . . (the plaintiff) are outweighed by the desirability of insuring prompt disposition of law suits while the witnesses are available and their memories reasonably fresh.'(Parenthetical matter supplied)

In order to consider the invocation of the tolling statute(§ 1-24) it must be read to mean and understood to say that the defendant has absconded, concealed himself, or departed from the state in such manner so that he is beyond the reaches of the law for purposes of service.

This thought is expressed in Phillips v. Anchor Hocking Glass Corporation, 100 Ariz. 251, 413 P.2d 732, 739-739(1966), where that court said:

'. . . For a foreign corporation to be 'without the state' or 'absent' within the meaning of a statute providing for the tolling of limitations during the absence of the defendant, it must be out of the state in the sense that it could not be served with process.(Citations omitted)Since we have held that defendant can be properly served, the statute of limitations is not tolled.'(Parenthetical matter and emphasis supplied)

To the same effect seeLipe v. Javelin Tire Company, Inc., 96 Idaho 723, 536 P.2d 291(1975);Engle Bros., Inc. v. Superior Ct., in and for County of Pima, 23 Ariz.App. 406, 533 P.2d 714(1975);Krontz v. Estovez, 49 Mich.App. 30, 211 N.W.2d 213(1973);Gatliff v. Little Audrey's Transportation Co., 317 F.Supp. 1117(D.Neb.1970);Summerrise v. Stephens, 72 Wash.2d 808, 454 P.2d 224(1969);andDaigle v. Leavitt, 54 Misc.2d 651, 283 N.Y.S.2d 328.

This seems to be the proper application of the statute of limitations contained in § 1-1066 as it must be read together with § 1-24and§ 1-52.There can be no reason for a tolling statute except where service is impossible or unusually difficult.It would be inequitable to allow a defendant to escape service through trickery and concealment.The need and reason for the tolling statute fails where there is another readily-available method of service.In the matter before us, § 1-52 authorizes service on the non-resident motorist or the resident motorist who has concealed himself or who has absconded, and, therefore, the tolling statute serves no purpose in these circumstances.

The Supreme Court of Nevada has held that a defendant is constructively present through his agent for the purpose of service of process, and that presence causes the period of limitations to run notwithstanding the defendant's physical absence from the state.Cal-Farm Insurance Company v. Oliver, 78 Nev. 479, 375 P.2d 857(1962);Bank of Nevada v. Friedman, 82 Nev. 417, 420 P.2d 1(1966).

It was held in Snyder v. Clune, 15 Utah 2d 254, 390 P.2d 915, 916(1964):

'. . . In connection with the plaintiff's contention it is necessary to also consider our nonresident motorist act, Sec. 41-12-8, U.C.A.1953, which was enacted in 1943, (S.L.U.1943, Ch. 68, Sec. 12).It authorizes service upon a nonresident of the state by serving the Secretary of State.The effect of this is to constitute the Secretary of State as the agent of a nonresident motorist to receive process for him.Further pertinent to this problem is Rule 4(e)(1) U.R.C.P., which states that personal service may be made upon a defendant'* * * by delivering a copy to an agent authorized by appointment or by law to receive service of process.'(Emphasis added.)The defendants thus had an agent within the state upon whom process could have been served for them, and they were thus not 'absent' from the state in the sense contemplated by the statute, that is, unavailable for the service of process.Therefore, the plaintiff was not prevented from commencing her action at any time she desired.That being so,...