Vaughn v. Deitz

• Decision Date: 26 June 1968
• Docket Number: No. B--738,B--738
• Citation: 430 S.W.2d 487
• Parties: Virgil A. VAUGHN et ux., Petitioners, v. John D. DEITZ et ux., Respondents.
• Court: Texas Supreme Court

Page 487

430 S.W.2d 487

Virgil A. VAUGHN et ux., Petitioners, v. John D. DEITZ et ux., Respondents.

No. B--738.

Supreme Court of Texas.

June 26, 1968.

Rehearing Denied July 24, 1968.

Touchstone, Bernays & Johnston, Charles Beresford and Wade C. Smith, Dallas, for petitioners.

Baker, Jordan & Foreman, William Carl Block and Joe Boudreaux, Dallas, for respondents.

WALKER, Justice.

The question to be decided here is whether Article 5537, ¹ which suspends the statute of limitations while the defendant is 'without the limits of this State,' applies in a case where substituted service of process is available under the provisions of Article 2039a. We hold that it does.

There is no dispute as to any of the material facts. Suit was instituted by John Deitz and wife against Virgil A. Vaughn and wife to recover damages arising out of an automobile collision. The collision occurred on January 11, 1964, and the suit was filed on January 18, 1966. Both plaintiffs and defendants were residents of Texas at the time of the accident. The defendants left Texas and established their permanent residence in Florida in June, 1964. Except for brief visits, they remained absent from Texas continuously thereafter. Service of citation was made by leaving certified copies with the Chairman of the State Highway Commission as provided in Article 2039a.

Defendants moved to dismiss the cause on the ground that the suit is barred by the two-year statute of limitations. Their motion was granted by the trial court, and the cause was dismissed with prejudice. The Court of Civil Appeals concluded that the running of the statute of limitations was suspended during the period of defendants' absence from the state. It accordingly reversed the judgment of the district court and remanded the cause for trial. 423 S.W.2d 113.

Article 5537 provides as follows:

'If any person against whom there shall be cause of action shall be without the limits of this State at the time of the accruing of such action, or at any time during which the same might have been maintained, the person entitled to such action shall be at liberty to bring the same against such person after his return to the State and the time of such person's absence shall not be accounted or taken as a part of the time limited by any provision of this title.'

Defendants argue that this statute is not applicable here. They emphasize the hardship that might be caused by permitting a plaintiff to defer service of process indefinitely when a means of service is continuously available. They also point out that there is no reason for tolling the statute of limitations when a non-resident defendant is subject to the in personam jurisdiction of the Texas courts by virtue of Article 2039a. It is their contention that such a defendant is not 'without the limits of this State' within the meaning of Article 5537.

These arguments have persuaded a number of courts to hold that a statute suspending the period of limitations is not applicable in cases arising out of automobile accidents occurring in the state where there is a statute providing for substituted service of process upon a state official. This is the majority view. See Peters v. Tuell Dairy Co., 250 Ala. 600, 35 So.2d 344; Coombs v. Darling, 116 Conn. 643, 166 A. 70; Hurwitch v. Adams, 52 Del. 247, 155 A.2d 591; Nelson v. Richardson, 295 Ill.App. 504, 15 N.E.2d 17; Kokenge v. Holthaus, 243 Iowa 571, 52 N.W.2d 711; Hammel v. Bettison, 362 Mich. 396, 107 N.W.2d 887; Cal-Farm Ins. Co. v. Oliver, 78 Nev. 479, 375 P.2d 857; Bolduc v. Richards, 101 N.H. 303, 142 A.2d 156; Whittington v. Davis, 221 Or. 209, 350 P.2d 913; Arrowood v. McMinn County, 173 Tenn. 562, 121 S.W.2d 566; Snyder v. Clune, 15 Utah 2d 254, 390 P.2d 915; Smith v. Forty Million, Inc., 64 Wash.2d 912, 395 P.2d 201; Annotation, 17 A.L.R.2d 502, 516. Other courts hold that the suspension statute must be applied in accordance with its terms. Staten v. Weiss, 78 Idaho 616, 308 P.2d 1021; Gotheiner v. Lenihan, 20 N.J.Misc. 119, 25 A.2d 430; Couts v. Rose, 152 Ohio St. 458, 90 N.E.2d 139; Bode v. Flynn, 213 Wis. 509, 252 N.W. 284.

The precise question has not been decided in Texas, but at least two courts have concluded from our treatment of related problems that Article 5537 applies even in cases where an alternative method of personal service is available. Gibson v. Nadel, 5th Cir., 164 F.2d 970; Cellura v. Cellura, 24 A.D.2d 59, 263 N.Y.S.2d 843. We agree. Huff v. Crawford, 88 Tex. 368, 30 S.W. 546, 31 S.W. 614, was an action in trespass to try title, and the nonresident defendants, who held possession through an agent, claimed title by limitations. In holding that the suspension statute applied to actions for the recovery of land, the Court said:

'There is nothing in the terms of the article in question which indicates that it was to be limited in its application, and the fact that it is inserted in the general provisions indicates that it was to apply as well to the actions specified in the first chapter as to those designated in the second. There may be reason why suits for the recovery of land should be excepted from the operation of the statute, but there are none which are sufficiently cogent to include us to believe that the legislature did not intend what, by its language, it has so clearly expressed.'

Our opinion in Wilson v. Daggett, 88 Tex. 375, 31 S.W. 618, makes it even clearer that the plaintiff may rely upon the suspension statute even though the absence of the defendant did not deprive him of an opportunity to litigate his claim in the Texas courts. The defendants there were nonresidents who had been in the state temporarily on business before possession of the land was taken by their tenant. One of them was also in the state at different times after the tenant went into possession. It was held that the suspension statute did not apply to such defendants, who had never resided in Texas and were not in the state when possession of the land was taken, but the Court went on to say:

'It may be that the statute should not be suspended as to one who, being a resident of the state, takes possession of a tract of land, or one who, not being a resident, occupies in person the disputed premises, and then leaves the state, continuing his possession through an agent or tenant. * * * There are reasons why absence should not suspend the running of the statute in any suit for the recovery of land. To continue its operation, there must always be some one in possession, and such possessor may be sued at any time. The nonresident himself may be sued by publication, and his title determined. Arndt v. Griggs, 134 U.S. 316, 10 Sup.Ct. 557, (33 L.Ed. 918). * * * Nevertheless, we have felt constrained to hold, as has been held in construing like statutes by the courts of other states, that the provision is applicable to real as well as personal actions.'

There is, of course, a difference between in personam jurisdiction and in rem jurisdiction. This difference is of considerable importance in cases such as Hart v. Winsett, 141 Tex. 312, 171 S.W.2d 853, where a personal judgment against the defendant is part of the relief to which the plaintiff is entitled. When only the title to land is in issue, however, the plaintiff can obtain in the courts of Texas full relief against a nonresident defendant while the latter is absent from the state. In so far as the applicability of Article 5537 is concerned, it seems to us that there is no material distinction between an action in trespass to try title against a defendant who may be served with nonresident notice and a damage suit against a defendant who may be served under the provisions of Article 2039a.

The arguments advanced by the defendants for not applying Article 5537 in this case are indeed persuasive, but they should be addressed to the Legislature. The statute was enacted in substantially its present form in 1841. It purports to deal with a defendant who is 'without the limits of this State,' and speaks of bringing suit against such person 'after his return to the State.' This obviously refers to the absence of the defendant from or presence within the territorial limits of the state. There is no irreconcilable conflict between the provisions of Article 5537 and those of Article 2039a, and we find nothing to suggest that the Legislature intended by the latter to effect a pro tanto repeal of the former. We hold that Article 5537 is not rendered inapplicable by the fact that substituted service is available to the plaintiff under Article 2039a.

Defendants also argue that Article 5537, when so construed, denies them equal protection of the law. They say that since the enactment of Article 2039a, the nonresident defendant is in the same position as one who resides in the state. We do not agree. Service of process in the state will enable the plaintiff to obtain a personal judgment against a resident defendant, but that is not true in the case of a nonresident defendant who must be served under the provisions of Article 2039a. The plaintiff may not proceed to judgment against the latter by merely serving the Chairman of the State Highway Commission. Notice of such service and a copy of the process must be sent by the Chairman to the defendant by registered mail. It is always necessary then for the plaintiff to ascertain the defendant's address, and distance is one of the factors that may make it more difficult and expensive to obtain that information. Absence from the state is not an unreasonable or arbitrary basis of classification where the statutes of limitation are concerned, and it is our opinion that Article 5537 is valid as written.

The judgment of the Court of Civil Appeals is affirmed.

DISSENTING OPINION

POPE, Justice.

Article 5537, ¹ the tolling statute, provides that limitations cease to run during the time 'any person against whom there shall be a cause of action shall be without the limits of this state * * *.'

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