Williams v. Egan

• Decision Date: 05 March 1957
• Docket Number: No. 37063,37063
• Citation: 308 P.2d 273
• Parties: M. H. WILLIAMS, and Franklin & Williams Poultry Company, a co-partnership, Plaintiffs in Error, v. Benjamin T. EGAN, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 273

308 P.2d 273

1957 OK 42

M. H. WILLIAMS, and Franklin & Williams Poultry Company, a co-partnership, Plaintiffs in Error, v. Benjamin T. EGAN, Defendant in Error.

No. 37063.

Supreme Court of Oklahoma.

March 5, 1957.

Syllabus by the Court.

1. Under a statute providing for mailing to a non-resident motorist by restricted registered mail addressed to his last known address or place of abode, a notification of filing with the Secretary of State a summons or notice of suit, in itself, evidences a legislative intent to provide for cases in which notice is not actually delivered to defendant.

2. Under Oklahoma Statutes, 47 O.S.1951 §§ 391-403, making Secretary of State agent of non-resident motorist for service of process, plaintiff need not actually succeed in notifying non-resident motorist, if all details of statute have been complied with, and the plaintiff has stated correct name of non-resident motorist and his address or last known place of abode as definitely as known, and is not guilty of fraud or bad faith.

3. Record examined and held, service of notice of pending action for recovery of damages growing or arising out of the use and operation of a motor vehicle in this state on the public highways thereof against Franklin and Williams Poultry Company, a co-partnership, a non-resident, was in substantial compliance with the applicable statutes. 47 O.S.1951 §§ 391-401.

Appeal from the District Court of Atoka County; Lavern Fishel, Judge.

Action by Benjamin T. Egan, plaintiff, to recover in damages against M. H. Williams and W. C. Franklin, individually, and as copartners, doing business as Franklin and Williams Poultry Company. From a judgment for plaintiff, defendant M. H. Williams, individually, and as a member of the partnership of Franklin and Williams Poultry Company, appeals. Affirmed.

George E. Fisher, Rex H. Holden, Oklahoma City, Memminger & Cook, Atoka, for plaintiffs in error.

Pierce, Mock & Duncan, Oklahoma City, for defendant in error.

JOHNSON, Justice.

The parties will be referred to herein as they appeared in the trial court.

Benjamin T. Egan, plaintiff, filed suit against defendants W. C. Franklin and H. M. Williams, individually, and as co-partners doing business as Franklin and Williams Poultry Company, and Otis Fay Cluck, the driver of their vehicle, to recover personal injury damages arising out of an automobile collision.

The action was dismissed as to W. C. Franklin, individually, and Otis Fay Cluck. The cause was tried to a jury. The jury rendered a verdict for plaintiff for $5,000. The trial court approved the verdict and rendered judgment accordingly. Defendant H. M. Williams, for himself and for the partnership, appeals.

The single issue presented is whether the trial court had jurisdiction over the defendants. The court had jurisdiction if defendants were served with process as provided for under the non-resident motorist statute, 47 O.S.1951 § 391 et seq.

In this connection the record discloses that in Atoka County, Oklahoma, on November 13, 1951, Otis Fay Cluck was driving a truck for Franklin and Williams Poultry Company which collided with an automobile driven by plaintiff, causing the damage for which judgment was rendered. Service of summons was made upon the secretary of state as provided for under 47 O.S.1951 § 391 et seq. A copy of the summons and notice was sent to W. C. Franklin and H. M. Williams, individually, in care of Franklin and Williams Poultry Company, and also copies of same to the defendant Franklin and Williams Poultry Company, a co-partnership, at its last known address, 2712 Coombs Street, Dallas, Texas, which was admittedly their business address at the time of the accident and was their last known address. The copies of the summonses and notices were never delivered to the defendants at the above address because they had gone out of business and left no forwarding address. The letters were returned to plaintiff and filed in the office of the court clerk showing no delivery. The forms used in the United States Post Office for return receipt and the delivery of registered letters known as 'return receipt requested' were not returned with the letters, since it was shown by the testimony of a United States postal employee that under the regulations of the Post Office Department such unsigned 'return receipts' were destroyed by postal employees, and only the letters were returned where delivery was not made.

It is undisputed that plaintiff's attorney made inquiry as to the address of defendants and that notices of suit were mailed by restricted registered mail to the defendants at 2712 Coombs Street, Dallas, Taxas, and that the affidavit of mailing shows that the notice was mailed to H. M. Williams, individually, and to the Franklin and Williams Poultry Company, a co-partnership, addressed to 2712 or 2716 Coombs Street, Dallas, Texas, stating that said address was the last known residence of said defendants; that the returned envelopes were filed in the District Court of Atoka County, Oklahoma, showing 'Returned to Writer, Moved Left No Address.'

It is also undisputed that defendant's answer date was January 12, 1954, and that on January 4, 1954, a letter was written to the Employers Liability Assurance Corporation, Ltd., of Boston, Massachusetts, advising that corporation that its insured, Franklin and Williams Poultry Company of Dallas, Texas, and the individuals comprising said partnership, W. C. Franklin and H. M. Williams, had been sued in the District Court of Atoka County, Oklahoma, for damages which arose out of the accident. The insurer was also advised that letters addressed to the defendant containing copies of the summonses along with other pertinent papers, though forwarded to the defendant partnership and the individual defendants, had been returned not delivered. Thereafter, prior to answer date, on January 11, 1954, a formal motion to quash summons was filed by all of the defendants. On January 27, 1954, defendants' motion to quash summons was overruled by the District Court of Atoka County, and the defendants excepted to the court's ruling. On February 6, 1954, the defendants filed a motion to make more definite and certain and a general demurrer, which pleadings were overruled on February 23, 1954. Thereafter, on March 13, 1954, the defendants filed their answers of general denial, with affirmative allegations of contributory negligence on the part of the plaintiff. On April 9, 1954, the defendants filed an amendment to the answer wherein defendants interposed the further defense of unavoidable casualty. The answers, as in motions, raised no question of jurisdiction or venue.

On December 1, 1954, the defendant Williams moved for a continuance, which was granted, but no question of jurisdiction or venue was raised.

At pre-trial conference no question of jurisdiction was raised, and no objection was interposed as to the manner in which service had been obtained in the cause. But, to the contrary, defendants stated to the court that the parties were proper, necessary and properly identified and that the issues were made up.

The cause was set for trial on June 21, 1955. The defendants renewed the motion to quash summons and service, which was again overruled, and the cause proceeded to trial resulting in judgment as hereinbefore mentioned.

It is argued that plaintiff failed to substantially comply with the provisions of the applicable statute, 47 O.S.1951 § 391 et seq., because that a period of almost two years after the accidental injury and dissolution of the partnership had elapsed before the letters containing pertinent notices and papers were addressed to the place of business, which was never the last known address or the place of residence of W. C. Franklin or H. M. Williams, but to an address which had been abandoned as their place of business for approximately two years; that meanwhile one of the partners (W. C. Franklin) had died. The other partner (H. M. Williams) remained where he had lived (Kit Lane, Star Route, Irvin, texas) for many years.

Admittedly, however, as shown by the evidence of defendant H. M. Williams, the employee (truck driver) was expected in case of an accident to give the highway patrol the address of his employer, Franklin and Williams Poultry Company, a copartnership, 2712 Coombs Street, Dallas Texas (which was done in the instant case by Otis Fay Cluck, defendants' truck driver) and that he was never instructed otherwise; that as far as their (...