Ashley v. Brown, 198 N.C. 369 (1930)

Feb. 19, 1930 · Supreme Court of North Carolina
198 N.C. 369


(Filed 19 February, 1930.)

1. Statutes B b — In absence of express provision statutes will not be given retroactive eifect unless necessary from construction.

A statute wbicb is not remedial or curative, but wbicb affects a substantial right will not be construed as retroactive or retrospective unless it expressly provides therefor, or by construction it is necessary to so regard it to carry out tbe legislative intent.

2. Process B e — Statute providing for service on Commissioner of Revenue in action against nonresident automobile owner has no retroactive effect.

Tbe statute which provides that a nonresident by using tbe highways of tbe State, will be deemed to have appointed tbe Commissioner of Revenue as bis agent for tbe service of process is not remedial or curative, but affects a substantial right, and the appointment of tbe Commissioner thereunder is contractual, and tbe statute is not to be given retroactive effect, and service of process thereunder in an action accruing before tbe effective force of tbe statute is void.

3. Statutes B a — Statute adopted from another state will ordinarily be given tbe construction placed upon it by the state from which adopted.

Where a statute is adopted in our State from another State or country, as a general rule, it is to be construed in accordance with tbe interpretation given it by tbe State or country from wbicb it is adopted, especially when tbe statute itself does not express any intention to tbe contrary.

Appeal by plaintiff from Sinclair, J-., at September Term, 1929, of CaMdeN.


*370Tbis is an action to recover damages for personal injury. The plaintiff alleges that on 2 December, 1928, the defendant negligently operated an automobile on a public highway in Camden County and negligently caused its collision with a car in which the plaintiff was traveling, and thereby inflicted upon her serious personal injury for which she is entitled to damages. The defendant entered a special appearance and moved to dismiss the action for the reason that there had been no valid service of process upon him and that the court had no jurisdiction to proceed against him in the premises. The motion was allowed, judgment was entered, and the plaintiff excepted and appealed.

The defendant was not personally served. The only evidence of the service of process is contained in the plaintiff’s affidavit which was filed 25 September, 1929. She alleges that the summons was issued on 10 August, 1929; that the summons and the complaint were served on the defendant by reading the summons and by delivering a copy of the summons and of the complaint together with $1.00 to A. J. Maxwell, Commissioner of Revenue of North Carolina, on 20 August, 1929; that a copy of the summons and a copy of the complaint were mailed to the defendant by said Commissioner by registered mail and received by the defendant on 19 September, 1929; that on 19 August, 1929, the plaintiff caused the summons and the complaint to be served on the defendant by mailing a copy of each of these papers to the defendant by registered mail and that said copy was received by the defendant on 30 August, 1929. She further alleges that these acts are shown by the following return receipts which are attached to her affidavit:

1. Post Office Department — Official business

Registered Article

No. 574

Return to Mrs. Hilda Saunders Ashley,

c/o MeMullan & LeRoy,

Elizabeth City, N. C.

RetubN Receipt :

Received from the Postmaster the Registered or Insured Article, the original number of which appears on the face of this card.

A. R. BeowN

(Signature or Name of Addressee)

Date of delivery, 30 August, 1929.

2. Post Office Department — official business.

Registered Article

No. 4692

Return to A. J. Maxwell, Commissioner, Raleigh, N. C.

*371RetueN Receipt :

Received from tbe Postmaster the Registered or Insured Article, the original number of which appears on the face of this card.

A. R. BeowN

(Signature or Name of Addressee)

Date of delivery, 19 September, 1929.

McMullan & LeRoy for plaintiff.

W. Shepard Drewry and Ehringhms & Hall for defendant.

AdaMS, J.

In 1929 the General Assembly enacted a statute regulating the service of process upon nonresidents of the State in civil actions growing out of .accidents or collisions in which the owners or operators of motor vehicles are charged with liability in damages. P. L. 1929, ch. 75. The act was ratified 1 March, 1929, and immediately became effective. The first section is as follows:

“That the acceptance by a nonresident of the rights and privileges conferred by the laws now or hereafter in force in this State permitting the operation of motor vehicles, as evidenced by the operation of a motor vehicle by such nonresident on the public highways of this State, or the operation by such nonresident of a motor vehicle on the public highways of the State other than as so permitted or regulated, shall be deemed equivalent to the appointment by such nonresident of the Commissioner of Revenue, or of his successor in office, to be his true and lawful attorney upon whom may be served all summonses or other lawful process in any action or proceeding against him, growing out of any accident or collision in which said nonresident may be involved by reason of the operation by him, for him, or under his control or direction, express or implied, of a motor vehicle on such public highway of this State, and said acceptance or operation shall be a signification of his agreement that any such process against him shall be of the same legal force and validity as if served on • him personally. Service of such process shall be made by leaving a copy thereof, with a fee of one dollar, in the hands of said Commissioner of Revenue, or in his office, and such service shall be sufficient service upon the said nonresident: Provided, that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff or the Commissioner of Revenue to the defendant and the defendant’s return receipt and the plaintiff’s affidavit of compliance herewith are appended to the summons or other process and filed with said summons, complaint and other papers in the cause. The court in which the action is pending shall order such continuance as may be necessary to afford the defendant reasonable opportunity to defend the action.”

*372The trial court found the following facts and made them a part of the judgment: (1) The plaintiff’s injury, which is the subject of the action, occurred on 2 December, 1928, and therefore prior to the ratification of the act; (2) the plaintiff is a nonresident of North Carolina and a resident of Virginia; (3) the defendant is a nonresident of North Carolina; (4) when the injury occurred both parties were and have since continuously been nonresidents of the State; (5) at no time since 3 December, 1928, has the defendant been in the State, or driven, or caused or expressly or impliedly permitted to be driven upon its highways any motor vehicle which he owned or controlled. Since the facts thus found are binding upon this Court, it is obvious that the determinative question is whether the act of 1929 is retrospective or only prospective in its operation.

As applied to statutes the words retroactive and retrospective may be regarded as synonymous and may broadly be defined as having reference to a state of things existing before the act in question. A retrospective law may be defined more specifically as one “which is made to affect acts or transactions occurring before it came into effect, or rights already accrued, and which imparts to them characteristics, or ascribes to them effects, which were not inherent in their nature in the contemplation of the law as it stood at the time of their occurrence.” Black on Interpretation of Laws, 247.

Concerning its retrospective operation the statute contains no express declaration of the legislative intent. We must therefore observe the general rule that all statutes are to he construed as having only prospective operation unless an intention to give them retrospective effect is expressly declared or necessarily implied; or, as stated in United States v. Heth, 7 U. S., 3 Cranch, 398, 413, 2 Law Ed., 479, 483, that “words in a statute ought not to have a» retrospective application, unless they are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the Legislature cannot be otherwise satisfied.” A specific application of the rule in several of its phases may be seen by reference to the following cases: United States v. Burr, 159 U. S., 78, 40 L. Ed., 82; United States v. American Sugar Ref. Co., 202 U. S., 563, 50 L. Ed., 1149; Wilkinson v. Wright, 1 N. C., 422; Peace v. Nailing, 16 N. C., 289, 296; Merwin v. Ballard, 66 N. C., 398; Greer v. Asheville, 114 N. C., 678; Mann v. Allen, 171 N. C., 219; Waddill v. Masten, 172 N. C., 582; Commissioners v. Blue, 190 N. C., 638.

An intention to make the statute retrospective is neither expressly declared nor necessarily implied; but an intention to make its operation prospective only is clearly indicated. The service of process under this act upon a nonresident of the State is predicated upon the appointment by the nonresident of the Commissioner of Revenue, or his successor in office, as the attorney upon whom, in actions against the nonresident, a *373summons or other lawful process may be served; and tbe appointment of an attorney for this purpose is predicated upon tbe acceptance by a nonresident of tbe privilege of operating motor vehicles upon tbe public highways of tbe State. His acceptance of this right :a.t any time after tbe act was ratified is deemed equivalent to tbe appointment of tbe Commissioner of Revenue as bis attorney. But at tbe date of tbe alleged injury bis use of tbe public highways did not impliedly or otherwise have tbe effect of appointing .an attorney upon whom process could be served for tbe purpose of bringing him within tbe jurisdiction of tbe courts of this State; and tbe defendant has not at any time since tbe ratification of tbe act been in tbe State or permitted a motor vehicle owned or controlled by him to be driven on its highways.

Curative and remedial statutes which are necessarily retrospective must be given a retrospective operation unless tbe effect will be to disturb vested rights or to impair tbe obligation of contracts. 25 R. C. L., 790, et seq. But tbe statute under consideration is neither remedial nor curative; it imposes a contractual obligation and affects substantial rights. If construed as retrospective, it would confer upon tbe plaintiff a legal right where none before existed and deprive tbe defendant of bis exemption from tbe service of process by tbe method therein prescribed.

Tbe act in question was modeled after tbe Massachusetts law. Acts and Resolves of Massachusetts, 1923, cb. 431, sec. 2. In substance tbe two are almost identical. Tbe validity of tbe .latter act was sustained by tbe Massachusetts Supreme Judicial Court in Pawloski v. Hess, 35 A. L. R., 945, and on a writ of error by tbe Supreme Court of tbe United States in Hess v. Pawloski, 274 U. S., 352, 71 L. Ed., 1091. See Poti v. N. E. Road Machinery Co., 140 Vt., 587; S. v. Johnston, 79 N. J. L., 49, 74 At., 538; Kane v. State, 81 N. J. L., 594, 80 At., 453; Kane v. New Jersey, 242 U. S., 160, 62 L. Ed., 222. Tbe question of its application to actions growing out of accidents or collisions which occurred before it became effective was considered by tbe Massachusetts Supreme Judicial Court in Paraboschi v. Shaw, 155 N. E., 445. Tbe Court held that there was no legislative attempt to make tbe statute applicable to eases which bad arisen before it became effective, and tbe order granting a motion to dismiss tbe action for- this reason was affirmed. In tbe course of tbe opinion Rugg, G. J., said: “Tbe essence of that statute is that tbe operation of a motor vehicle upon tbe highways of this commonwealth by a nonresident shall be 'deemed equivalent to tbe appointment by such nonresident of tbe registrar of motor vehicles’ as bis attorney for tbe service of all lawful processes in tbe specified actions and 'a signification of bis agreement that any such process against him’ so served 'shall be of tbe same legal force and validity as if served on him personally.’ Tbe statute thus imposes upon tbe nonresident operating a. motor vehicle as there described tbe contractual obligation of making *374the registrar of motor vehicles bis agent for the limited purpose stated. Such a contractual obligation relates to substantive rights and not merely to remedy. It is manifest from the frame of the act that there was no intention on the part of the Legislature to attempt to ascribe such contractual obligation to acts committed before the statute became operative.”

This construction is applicable to the statute before us. The contractual obligation arises upon the nonresident’s acceptance of proffered rights and privileges, which signifies his agreement that process served upon his attorney shall be equivalent to personal service upon himself. While the decisions of one State are not conclusive on the courts of another, there is an established principle to the effect that “where a statute is adopted from another State or country, and the same has been construed by such State or country, it is the general rule that the statute is to be held to have been adopted with the construction so given to it, and particularly where the statute itself does not express any intention to the contrary.” People v. Trust Co., 289 Ill., 475, cited in Bank v. Doughton, 189 N. C., 50. See Harvard Law Review, February, 1930, note, page 623.

The statute assailed in Wuchter v. Pizzutti, 276 U. S., 13, 72 L. Ed., 446, was held invalid because it contained no provision making it reasonably probable that the notice would be communicated to the person sued; but it differs materially from our statute.

We are of opinion that the act of 1929 has no application to actions growing out of accidents or collisions which occurred before it went into effect, and that the judgment of the trial court should be affirmed.

Judgment affirmed.