Wheeler v. Flintoff

• Decision Date: 18 June 1931
• Citation: 159 S.E. 112
• Court: Virginia Supreme Court
• Parties: WHEELER. v. FLINTOFF et al.

159 S.E. 112

WHEELER.

v.FLINTOFF et al.

Supreme Court of Appeals of Virginia.

June 18, 1931.

Error to Circuit Court, Chesterfield County.

Action by Charles M. Flintoff against James K. Wheeler and another. To review the judgment, James K. Wheeler brings error.

Reversed and. dismissed.

Argued before PRENTIS, C. J., and CAMPBELL, HOLT, HUDGINS, and GREGORY, JJ.

Richard H. Mann, of Petersburg, for plaintiff in error.

Chas. B. Godwin, Jr., and Jas. H. Corbitt, both of Suffolk, M. A. Cogbill, of Chesterfield C. H., and Sinnott, May & Leaman, of Richmond, for defendants in error.

HUDGINS, J.

The plaintiff in error, James K. Wheeler, a citizen and resident of the state of New York, accompanied by his wife, on April 9, 1928, was traveling by automobile through Virginia from Florida to his home in New York. While passing over the highway between Petersburg and Richmond, his automobile was struck by a car driven by Yoel M. Yonan. As a result of the impact, Wheeler's car ran off the concrete, striking and in juring two surveyors employed by the state highway department, who were at work some five or six feet from the edge of the highway. The injured parties were carried to the hospital. Wheeler went to a hotel in Petersburg and had his car taken to a garage in that city for repairs. While at the hotel he was requested to come to the police station, and there he related to the chief of police his version of how the accident occurred and was advised to retain an attorney. It was also suggested that he remain in Petersburg until the matter could be settled.

The accident occurred in the county of Chesterfield, hence a criminal charge would have had to be preferred in that county. Late that afternoon, or early next morning, the trial justice of Chesterfield county, at the request of a deputy of the motor vehicle commissioner, called on Wheeler at his hotel, and after some discussion took his recognizance in the sum of $500, without security, for his appearance before him in Chesterfield county on the—— day of April, following. The justice informed him at the time that the recognizance was void because it was taken outside of his bailiwick, and that he had no jurisdiction in the city of Petersburg, where the parties then were. It therefore amounted only to a promise on the part of Wheeler to return when wanted.

Wheeler claims that the recognizance was for his appearance as a witness. The plaintiff below claimed that Wheeler promised to return for the purpose of answering any charge that might be brought against him. He gave the deputy motor vehicle commissioner and the trial justice his New York address and stated that he had employed Mr. Richard N. Mann, of Petersburg, as his attorney, that if they desired to get in touch with him they could do so, either directly or through his attorney, and that he would appear at such time and place as might be designated. Shortly thereafter he proceeded on his journey home.

Wheeler understood, either from this interview or was notified subsequently, that he was needed as a witness by the authorities in Chesterfield county on the 20th day of April. He claims that he returned to Virginia, pursuant to this request, for the sole purpose of testifying concerning the wreck. He reached Petersburg after midnight and next morning, accompanied by his attorney, drove from Petersburg to the office of the trial justice in Chesterfield county, and while waiting in that office to be called as a witness, as he thought, was served with process in this action, instituted by Charles M. Flintoff, one of the injured parties, against him and Yoel M. Yonan.

Wheeler, on the return day of the process, filed a written motion to quash and set asidethe service, on the ground that he was a nonresident and had returned to the state for the sole purpose of testifying as a witness.

Issue was joined on the motion, a jury was impaneled, and two questions submitted to them. The questions and the jury's answers thereto were as follows: "(1) Did the defendant, J. K. Wheeler, return to Virginia solely as a witness? Answer: No. (2) Did the defendant, J. K. Wheeler, return to Virginia to answer any charge that might be preferred against him before Trial Justice John W. Snead? Answer: Yes."

Wheeler moved to set aside the finding of the jury and to quash the service, notwithstanding their finding. The court, on motion of Flintoff, set aside the finding of the jury on the second question and ordered a new trial thereon.

Wheeler refused to introduce any evidence on the second trial of this issue. The court thereupon held that the service of process on him was valid. Thereafter the case was tried on its merits against James K. Wheeler and Yoel M. Yonan and resulted in a verdict and judgment of $12,500 against both of them. Wheeler was granted a writ of error and in his behalf the case was duly argued before this court, but there was no appearance for either Charles M. Flintoff, the plaintiff below, or Yoel M. Yonan, the co-defendant.

The only question we deem it necessary to decide is whether or not, on the facts disclosed, Wheeler was exempt from service of process in this action.

The precise question, it seems, has never been decided in this state. The nearest decision on the question was in the case of Commonwealth v. Ronald (17S6) 4 Call (8 Va.) 97. In that case the Chief Justice of the General Court was served with a process from the County Court of Henrico as he was leaving the bench. The matter was deemed of such importance that Chancellor Wythe brought it to the attention of his associates and a rule was issued against the attorney who ordered the process, the clerk who issued it, and the officer who served It. It was held that exemption from service of process on a party attending court was a privilege which was adopted as a part of the common law of England, and the privilege extends not only to judges, but to attorneys, witnesses, and the parties themselves.

Richards v. Goodson, 2 Va. Cas. 381, was a case in which a party to the cause was arrested on a capias ad satisfaciendum while attending court. It was held that he was privileged from arrest on a civil process while in attendance upon, going to, and returning from court.

The privilege, or exemption from service of a civil process on a witness while attending court in a state other than the state of his residence, seems to be almost universally recognized. 21 R. C. L. 1305, Rix v. Sprague Canning Machinery Co., 157 Wis. 572, 147 N. W. 1001, 52 L. R. A. (N. S.) 5S3; R. O. L. Per. Supp. 51S5; Church v. Church, 50 App. D. C. 239, 270 F. 361, and note, 14 A. L. R. 769. The reason for the privilege is for the better protection of the courts in the administration of justice, and to prevent the intimidation of suitors, solicitors and witnesses, and the disturbance of officers of the court in the performance of their duties. Tt is primarily for the protection of courts, the privilege to the individual is merely incidental.

The privilege protects the witnesses in going, in staying, and in returning from court, provided they act in good faith and without unreasonable delay. The object of affording such immunity is to encourage witnesses from other states to come forward voluntarily and testify. This policy commends itself to the courts as a wise and proper one, for where evidence is in conflict, the presence of witnesses giving their oral testimony before the court is a great aid to it in arriving at the truth of the matter.

It has been said that: "This immunity works no injustice to any one, for unless the witness comes within the state there would be no opportunity to serve process upon him. Therefore the plaintiff, who attempts to get service upon the witness while here as such, neither loses any rights nor suffers any injury by reason of this rule. He is simply prevented from taking advantage of the necessary presence of the witness in furtherance of his own private purposes." Malloy v. Brewer, 7 S. D. 589, 64 N. W. 1120, 1122, 58 Am. St. Rep. 856.

As to suitors, the courts are not in harmony. Some hold that the exemption extends to parties to the cause. Page Co. v. Macdonald, 261 U. S. 446, 43 S. Ct. 416, 67 L. Ed. 737; Winder v. Penniman, 181 N. C. 7, 105 S. E. 884, 13 A. L. R. 364; note 17, 21 R. C. L. 1306; Roberts v. Thompson. 149 App. Div. 437, 134 N. Y. S. 363. Others hold that it extends to the defendant, but not always to the plaintiff, in the action. Bishop v. Vose, 27 Conn. 1; note to Long v. Hawken, 114 Md. 234, 79. A. 190, 42 L. R. A. (N. S.) 1101.

See Rizo v. Burruel, 23 Ariz. 137, 202 P. 234, 19 A. L. R. 823; Livengood v. Ball, 63 Okl. 93, 162 P. 768, L. R. A. 1917C, 905.

In Mullen v. Sanborn, 79 Md. 364, 29 A. 522, 25 L. R. A. 721, 47 Am. St. Rep. 421, the Maryland court held that under the peculiar circumstances of that case the plaintiff was not exempt from the service of process. Another Maryland case is that of Long v. Hawken, 114 Md. 234, 79 A. 190, 42 L. R. A. (N. S.) 1101, in which case the court referred to the case of Mullen V. Sanborn, but adoptedthe majority rule that both plaintiff and defendant, as well as witnesses, who come into the state for the sole purpose of attending c...