Wichert v. Cardwell

• Decision Date: 11 July 1991
• Docket Number: No. 57264-0,57264-0
• Citation: 812 P.2d 858,117 Wn.2d 148
• Court: Washington Supreme Court
• Parties: Susanne WICHERT, Petitioner, v. John Doe CARDWELL and his wife Jane Doe Frankie Cardwell, Respondents.

Page 148

117 Wn.2d 148

812 P.2d 858

Susanne WICHERT, Petitioner, v. John Doe CARDWELL and his wife Jane Doe Frankie Cardwell, Respondents.

No. 57264-0.

Supreme Court of Washington,

En Banc.

July 11, 1991.

Charles K. Wiggins, Edwards Sieh Wiggins & Hathaway, Seattle, for petitioner.

Sidney R. Snyder, Jr., Ronald S. Dinning, Merrick Hofstedt & Lindsey, P.S., Seattle, for respondents.

BRACHTENBACH, Justice.

At issue is the sufficiency of service of process and, more particularly, whether the method of service here employed was reasonably calculated to accomplish service. The Court of Appeals, on a motion on the merits, affirmed the trial court's dismissal of plaintiff's lawsuit. We reverse.

Plaintiff's suit for personal injuries was filed 1 day before expiration of the statute of limitations. Plaintiff attempted service of the summons and complaint within 90 days of filing. RCW 4.16.170.

Substitute service of process is authorized by RCW 4.28.080(14). Three separate elements must be satisfied to constitute such service: (1) a copy of the summons must be left at the house of defendant's usual abode, (2) with some person of suitable age and discretion, (3) then resident therein. Only element 3 is at issue.

The facts come solely from the findings of fact. The court denied defendants' motion for summary judgment because the affidavits raised a genuine issue of material fact. After trial on the short matter calendar, findings of fact were entered. Plaintiff assigned no error to those findings; there is no report of proceedings. Thus we are limited to those facts. Factual issues raised by plaintiff in the Court of Appeals must be excluded. ¹

Defendants were out of state when service was made. Their residence was occupied by defendant wife's 26-year-old daughter who had stayed there the night before process was served. The daughter had a key to defendant's residence. The daughter lived in her own apartment, was self-supporting and had no personal possessions at the residence. The daughter infrequently stayed over at defendant's residence.

As to what happened when the process server came to the residence we only have a sketchy, somewhat conclusory finding:

He [the process server] was greeted by the defendant Frankie Cardwell's daughter, Kim Pearson. The process server informed Kim Pearson that he was there to serve a summons and complaint on the defendants Cardwell. A discussion was held between Gary Brastad and Kim Pearson as to whether or not she was a suitable person to be served. Eventually, she did take possession of the summons and complaint.

Findings of fact 2. Clerk's Papers, at 19.

The defendants in fact received the summons and complaint; a notice of appearance was entered 10 days after service.

Our focus is upon the statutory phrase "then resident therein." The word "then" necessarily refers to the time of service; "therein" refers to the defendant's usual place of abode. The precise question then is the meaning of "resident therein" within the context and purpose of the statute.

There are numerous rules of statutory construction, but of particular relevance here are (1) the spirit and intent of the statute should prevail over the literal letter of the law and (2) there should be made that interpretation which best advances the perceived legislative purpose. In re R., 97 Wash.2d 182, 187, 641 P.2d 704 (1982); Bennett v. Hardy, 113 Wash.2d 912, 928, 784 P.2d 1258 (1990).

This court has observed that "[e]ach of the terms 'reside,' 'residing,' 'resident,' and 'residence' is elastic. To interpret the sense in which such a term is used, we should look to the object or purpose of the statute in which the term is employed." McGrath v. Stevenson, 194 Wash. 160, 162, 77 P.2d 608 (1938).

The purpose of statutes which prescribe the methods of service of process is to provide due process. "The fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). That opportunity to be heard in turn depends upon notice that a suit is being commenced. However, "[p]ersonal service has not in all circumstances been regarded as indispensable to the process due to residents...." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). Compliance with due process is described thusly: "The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it." Mullane, at 315, 70 S.Ct. at 657.

We then must put the method of service employed here to the Mullane test, i.e., whether that method is such that, a plaintiff "desirous of actually informing the absentee might reasonably adopt to accomplish it."

Before making that evaluation, however, we note the obvious that the plaintiff would prefer to personally serve the defendant and eliminate the uncertainty of sufficiency of substitute service. But the defendants were absent; the time for service was about to expire. Also, this court has noted the dual purposes of the statute in question. In Northwestern & Pac. Hypotheek Bank v. Ridpath, 29 Wash. 687, 710, 70 P. 139 (1902), "[t]his statute providing for service at his usual abode was not made exclusively for the benefit and protection of defendants, but was made also for the benefit and protection of parties who have just claims, so that residents of the state could not depart therefrom and defeat their creditors."

Service upon a defendant's adult child who is an overnight resident in the house of defendant's usual abode, and then the sole occupant thereof, is reasonably calculated to accomplish notice to the defendant. When defendant is absent, the person in possession of the house of usual abode is likely to present the papers to the defendant, particularly when that person is a family member.

We recognize that this decision does not establish a "bright line" rule, but a case to case determination is necessitated by the fact-specific requirements of the statute. "[T]he practicalities of the particular fact situation determine whether service meets the requirements of [Fed.R.Civ.P.] 4(d)(1)." Nowell v. Nowell, 384 F.2d 951, 953 (5th Cir.1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1053, 19 L.Ed.2d 1150 (1968).

We also note that the inquiry in any case is upon the method of attempted service, i.e., was it reasonably calculated to provide notice to the defendant? "It is hornbook law that a constitutionally proper method of effecting substituted service need not guarantee that in all cases the defendant will in fact receive actual notice...." (Citation omitted.) Bossuk v. Steinberg, 58 N.Y.2d 916, 918, 460 N.Y.S.2d 509, 447 N.E.2d 56 (1983).

Defendants rely upon John Hancock Mut. Life Ins. Co. v. Gooley, 196 Wash. 357, 83 P.2d 221, 118 A.L.R. 1484 (1938). That case is factually distinguishable. Service was upon the defendant's daughter-in-law in a hotel room temporarily occupied by defendants. While the court commented upon the daughter-in-law's status as a mere visitor, the real holding appears to be this: "We think that it also clearly appears that the room in the Englehorn hotel was not the house of usual abode of Mr. and Mrs. Gooley." Hancock, at 369, 83 P.2d 221. If that is correct, the status of the recipient is not material.

Defendants also argue that the statute must be strictly construed because it is in derogation of common law. This principle of statutory construction is often cited and has been used in construing the constructive or substituted service statute, see, e.g., Muncie v. Westcraft Corp., 58 Wn.2d 36, 38, 360 P.2d 744 (1961).

Unfortunately the purpose and rationale of a rule of construction that a statute in derogation of the common law generally have not been explored in connection with application of the rule in a particular case. The observation has been made that this rule and other maxims of interpretation "are merely justifications for decisions arrived at on other grounds, which may or may not be revealed in the opinion." Patterson, The Interpretation and Construction of Contracts, 64 Colum.L.Rev. 833, 852 (1964).

When it is urged that a statute should be strictly construed because it is derogation of the common law a number of issues are apparent. One should start with RCW 4.04.010.

The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state.

RCW 4.04.010.

The first step is to ascertain what was "the common law" as contemplated by RCW 4.04.010. See, e.g., Sayward v. Carlson, 1 Wash. 29, 40, 23 P. 830 (1890); Cooper v. Runnels, 48 Wash.2d 108, 291 P.2d 657 (1955).

Once the court determines what it considers to be "the common law," the next question is whether the statute is in "derogation" thereof.

Consideration must be given to RCW 1.12.010.

The provisions of this code shall be liberally construed, and shall not be limited by any rule of strict construction.

We note that this statute dates from 1854. The 1854 Act was the entire Civil Practice Act, 102 pages, and provided that it "shall be liberally construed, and shall not be limited by any rule of strict...