Brashers v. Jefferson

236 N.W.2d 132, 64 Mich. App. 540, 1975 Mich. App. LEXIS 1293

• Court: Michigan Court of Appeals
• Decided: September 24, 1975
• Docket: Docket 21655
• Status: Published

Opinions

D. E. Holbrook, J.

This appeal involves an automobile negligence case brought by plaintiff James Brashers, for damages against defendant John Wesley Jefferson. Plaintiff appeals from the granting of defendant’s motion for an accelerated judgment based on the running of the statute of limitations.

The pertinent facts applicable to the issues raised on this appeal appear in the record which discloses that the accident happened on April 6, 1970. Plaintiff commenced a suit in Kalamazoo County Circuit Court on October 30, 1972. In June of 1973, plaintiff served on the Michigan Secretary of State the summons and complaint. A registered letter was sent to the defendant at a Muncie, Indiana address, and the registered letter was returned marked "Could Not Be Delivered”. Attorney J. William Dark entered his appearance for the defendant in July of 1973. Upon learning that the registered letter was not served on the defendant, Mr. Dark requested of the court permission to withdraw his appearance, which was granted.

On August 8, 1973 a second suit with duplicate complaint was filed by plaintiff. On August 10, 1973 plaintiff filed proof of service showing that defendant had been personally served at Muncie, Indiana on August 7, 1973. The first suit was dismissed by the trial court on September 19, 1973, pursuant to GCR 1963, 102.5, since service was not obtained within 180 days of filing the complaint. The first complaint having been dismissed, the plaintiff’s attorney filed a motion on October 18, 1973 to set aside the dismissal of the first complaint. On February 21, 1974 an opinion and order denying the motion were entered.

On November 19, 1973 an amended complaint had been filed, alleging that the accident occurred on private property. On February 19, 1974 a third suit was filed in the same manner and a summons issued. On March 19, 1974 an affidavit of service on the defendant was filed, showing personal service on March 13, 1974 in Muncie, Indiana. On March 29, 1974 a motion for accelerated judgment was filed by the defendant in the third suit based on the claim that the statute of limitations had run. An opinion was filed by the trial court, granting defendant’s motion, and accelerated judgment was entered on September 9, 1974.

Plaintiff appeals as of right, and first asserts that the statute of limitations was tolled during the entire period of defendant’s absence from the state, pursuant to MCLA 600.5853; MSA 27A.5853. Plaintiff also asserts that the statute of limitations was tolled because he was materially hindered in effecting service of process on the defendant by means of either the nonresident motorist statute, if applicable, or by personal service.

MCLA 600.5853; MSA 27A.5853 reads as follows:

"If any person is outside of this state at the time any claim accrues against him the period of limitation shall only begin to run when he enters this state unless a means of service of process sufficient to vest the jurisdiction of a Michigan court over him was available to the plaintiff. If after any claim accrues the person against whom the claim accrued is absent from this state, any and all periods of absence in excess of 2 months at a time shall not be counted as any part of the time limited for the commencement of the action unless while he was outside of this state a means for service of process sufficient to vest the jurisdiction of a Michigan court over him was available to the plaintiff.”

Plaintiff claims that the nonresident motorist statute is not applicable since the accident occurred on private property and not a public highway. The plaintiff further claims that the statute of limitations was tolled because the plaintiff had no means of service sufficient to vest jurisdiction of a Michigan court over the defendant. In support of this claim, plaintiff asserts that available means of service are not considered sufficient to vest jurisdiction in a Michigan court where plaintiff shows that he has been materially hindered in effecting service, and was unable to locate defendant. Plaintiff also asserts that if the court is not able to acquire jurisdiction, theoretical permissible means for acquiring jurisdiction are not sufficient.

Defendant answers and asserts that under MCLA 600.705(2); MSA 27A.705(2),¹ plaintiff could have served defendant, since there existed a relationship between the defendant and the state based on the doing of an act within the state by the defendant, resulting in an action for tort. Additionally, defendant could have been served under the nonresident motorist statute by service upon the Michigan Secretary of State and either personal service or service by registered mail, with actual receipt by defendant of the service by registered mail required. Defendant also asserts that service under the non-resident motorist statute is not precluded in this case because the first two complaints filed by the plaintiff alleged that the accident occurred on a public thoroughfare, rather than on private property. For these reasons, defendant claims that the statute of limitations had run its course on plaintiff’s action.

Of importance to this appeal, plaintiff’s attorney filed a brief in the trial court and attached an affidavit which we set forth in full as follows:

"William E. Decker, being duly sworn deposes and says:

"1. That he is attorney for plaintiff in the above entitled action;

"2. That plaintiff originally filed a complaint on October 30, 1972, (File No. 724-192C) and summons was issued and copies of same were given to process server for service but plaintiff was unable to locate the defendant and obtain service locally at the last known address of 735 Skinner, Kalamazoo, Michigan;

"3. That plaintiff’s attorneys continued efforts to locate the defendant including an inquiry with the Credit Bureau of Kalamazoo, Inc. who reported by letter in January 1973, that the defendant was from the Muncie, Indiana area and had married his ex-wife, Gladys, there but that no information could be obtained by the Credit Bureau of Muncie, Indiana office as to his present whereabouts and that the Muncie office would put a watch card in its file;

"4. That on June 20, 1973, plaintiff obtained a Muncie, Indiana address on the defendant and on that date service was made on the Secretary of State and notice of service on the Secretary of State along with copies of the summons and complaint were sent to the defendant at the Muncie, Indiana address by registered mail;

"5. That the registered letter was returned marked "COULD NOT BE DELIVERED”;

"6. That Attorney J. William Dark entered an appearance on behalf of the defendant on July 23, 1973, after having been notified by plaintiff’s attorney of service on the Secretary of State;

"7. That on July 27, 1973, Attorney Dark moved to withdraw his appearance after learning that no receipt had been obtained on the registered letter to the defendant and on September 10, 1973, an order allowing withdrawal of appearance was entered;

"8. That on August 7, 1973, plaintiff obtained personal service on the defendant in Muncie, Indiana and an affidavit of service was filed on August 10, 1973;

"9. That on August 8, 1973 plaintiff filed a new complaint and summons was issued (File No. B733-00242 NI);

"10. That this new complaint and summons was filed after the individual had been sent to Muncie to obtain service on the first complaint and summons when affiant became aware of GCR [1963], 102.5 providing for dismissal without prejudice when service is not obtained within 180 days of filing a complaint;

"11. That on September 19, 1973, an order dismissing the first complaint without prejudice was entered;

"12. That in early October 1973, plaintiff sent the same individual who had obtained service on the defendant in August to Muncie a second time to obtain service on the new summons and complaint, but service could not be obtained;

"13. That on October 18, 1973, plaintiff filed a motion to set aside the dismissal of the first complaint;

"14. That on February 21, 1974 an opinion and order of the court were issued denying the motion;

"15. That in early February 1974, plaintiff learned of a second individual who had known the defendant in Muncie, Indiana and thought he could locate the defendant and that on February 6, 1974, this individual was sent to Muncie, Indiana to obtain service on the second complaint and summons;

"16. That this individual discovered that the defendant was hospitalized in Ball Memorial Hospital, Muncie, Indiana but was unable to obtain service in the hospital;

"17. That affiant obtained the defendant’s address in Muncie by telephone from the hospital administrative office;

"18. That on February 18, 1974 plaintiff filed a third complaint and summons (File No. C 741 00 337 NI) since the 180 days subsequent to filing the second complaint and summons on August 8, 1973, had expired;

"19. That affiant sent the third complaint and summons to the Delaware County Sheriff’s office for service of process on the defendant;

"20. That the sheriff’s return of service dated March 13, 1974, showing that service was made on the defendant at 1613 N. Brady, Muncie, Indiana was filed with the court on March 19, 1974.”

A supplemental affidavit of plaintiff’s attorney was also filed and is set forth as follows:

"William E. Decker, being duly sworn deposes and says:

"1. That the personal service obtained on August 7, 1973 indicated in paragraph 8 of affiant’s affidavit dated April 4, 1974, was made by one Robert Pritchard; that Robert Pritchard was the brother of Gladys Brinson, the defendant’s ex-wife, and had indicated to plaintiff that he thought he could locate the defendant in Muncie, Indiana; that on August 1, 1973 plaintiff’s attorneys paid Robert Pritchard $50 to go to Muncie and serve process on the defendant; that on August 9, 1973 said Pritchard returned to affiant’s office and informed affiant that he had served process on defendant in an automobile in Muncie but had not learned an address; that said Pritchard was paid $25 after his return to cover additional expenses incurred in his trip to Muncie and that plaintiff’s attorneys later paid $2.36 for two collect phone calls from Muncie by Pritchard on August 7 and August 8, 1974;

"2. That on September 21, 1973 plaintiff’s attorneys paid Pritchard $75 to return to Muncie and attempt to obtain service of process on plaintiff’s second complaint and summons and that Pritchard returned the papers to affiant in October, 1973, reporting that he had been unable to locate defendant on his second trip to Muncie (see paragraph 12 of affidavit);

"3. That on November 28, 1973, affiant spoke with defendant’s ex-wife, Elizabeth Jefferson, 1201 E. Willard, Muncie, Indiana, by telephone but she did not know where defendant was and had not seen him in 13 years although she thought he was in Muncie;

"4. That on December 6, 1973, affiant wrote defendant’s father Mathew Jefferson, 1110 5th Street, Muncie, but received no response;

"5. That on January 22, 1974, affiant wrote the ex-husband of defendant’s ex-wife, James Brinson, 520 E. Frank Street, Kalamazoo, Michigan, but received no response;

"6. That in early February, 1974, plaintiff came to affiant’s office with Michael Brinson, the son of defendant’s ex-wife Gladys Brinson, and on February 5, 1974, plaintiff’s attorneys paid said Brinson $50 to go to Muncie to attempt to perfect service of process on defendant;

"7. That on February 13, 1974, said Brinson returned to affiant’s office with the information that defendant was hospitalized at the Ball Memorial Hospital, Muncie, Indiana, and that Brinson could not serve defendant in the hospital; that Brinson gave affiant an address for defendant in Muncie of 922 S. Grant Street and affiant sent the necessary papers to the Delaware County Sheriff’s office for service on the defendant on the third complaint since by then (2-19-74) the second complaint and summons had expired, but that the papers were returned with a notation that no one by defendant’s name resided at that address; that affiant then called the Ball Memorial Hospital and obtained the 1613 N. Brady Street, Muncie, Indiana, address where service was ultimately obtained on March 13, 1974, when the papers were returned to the Delaware County Sheriff’s office;

"8. That in addition to the sums hereinabove mentioned plaintiff’s attorneys have advanced $90 for three filing fees, $1 for the Kalamazoo Police Dept. Offense Report, $4.95 for two Credit Bureau reports, $14.10 in service fees, $2.44 in phone calls, $1.26 for registered letter.”

We also set forth the affidavit of Arthur Staton, Jr., one of the attorneys for plaintiff, filed April 24, 1974, and is as follows:

"Arthur Staton, Jr., being first duly sworn, deposes and says:

"1. That he is one of the attorneys for plaintiff in the above entitled action.

"2. That in late 1971 or early 1972 plaintiff’s attorneys learned from plaintiff, who was acquainted with the defendant and some of defendant’s relatives, that the defendant no longer was residing at 735 Skinner, Kalamazoo, Michigan, and began their efforts to locate the defendant.

"3. That on March 2, 1972, affiant’s secretary, Mrs. Fran Smith, called the Credit Bureau of Kalamazoo, Inc., and received a report that defendant resided at 604 West North Street (which was not as recent an address as 735 Skinner on the Kalamazoo Police Department Offense Report dated 4/6/70 on the incident out of which the cause of action arose) and that defendant was employed at Precision Heating of Kalamazoo.

"4. That on March 2, 1972, affiant’s secretary also searched the Kalamazoo phone book and city directory for information on the defendant but reported she could find nothing.

"5. That affiant advised plaintiff to continue to make inquiries with the friends and relatives of the defendant, and plaintiff reported making such inquiries but was unable to learn the defendant’s whereabouts.

"6. That on October 30, 1972, affiant filed a complaint and summons in this action and on the same day affiant’s secretary submitted the summons and a copy of the summons and complaint to the Kalamazoo County Sheriff’s Department for service of process on the defendant with the only information that affiant had as to defendant’s whereabouts which was the last known address of 735 Skinner.

"7. That Deputy Sheriff H. D. Rook returned the papers to affiant’s office with a signed slip indicating that three trips were made to 735 Skinner but there was no one at that address by defendant’s name.

"8. That plaintiffs attorneys continued their efforts to locate and obtain service of process on the defendant as outlined in the affidavit and supplemental affidavit of William E. Decker.

"9. Further affiant saith not.”

Supporting affidavits were also filed by plaintiff and Fran Smith, secretary to plaintiff’s attorneys, verifying the information contained in the affidavits in reference to their knowledge and activities.

It appears to this Court from the affidavits of plaintiff’s attorneys filed herein, that there probably existed no other manner of service "reasonably calculated” to give the defendant actual notice.² It also appears to this Court that, although defendant was a resident of Michigan at the time of the accident, he departed from the state some time thereafter — the exact time not appearing in the record. We rule that under the facts in this case, it may very well be true" that defendant’s absence from the state is similar to that present in the recent case of Goniwicha v Harkai, 393 Mich 255, 255-257; 224 NW2d 284, 285-286 (1974), wherein our Supreme Court stated as follows:

"Plaintiffs commenced this action on November 23, 1970 to recover for injuries suffered in an accident which occurred on July 27, 1969. The action was dismissed for lack of progress on February 14, 1972 but was reinstated on March 20, 1972.

"Personal service was not effected until June 23, 1973, almost 4 years after the accident, 2 years and 7 months after suit was commenced.

"From 1969 until June 6, 1972, defendant was a nonresident of Michigan. Plaintiffs did not place the summons in the hands of an officer but employed a professional process server who was unable to serve the defendant. After the defendant again became a resident of Michigan on June 6, 1972, plaintiffs, on September 5, 1972, attempted to take advantage of the procedures for serving out-of-state residents by serving a copy of the summons on the Secretary of State and directing a registered mail letter to the defendant out of state, which was forwarded to the defendant and received by him in Michigan.

"In Buscaino v Rhodes, 385 Mich 474, 484 [189 NW2d 202, 206] (1971), this Court held that, for purposes of the statute of limitations as well as other purposes, an action is commenced upon filing of a complaint:

" 'We, therefore, hold that plaintiffs did comply with the statute of limitations, in that the complaint was filed pursuant to GCR 1963, 101 and the action commenced and, the provisions of the statute of limitations thus being met, the fact of subsequent service of the complaint can in no way affect the commencing of the action.’

"Subsequently, this Court amended GCR 1963, 102 to provide that a summons shall not be valid for longer than 180 days from the date of the filing of the complaint, to require dismissal without prejudice of actions where the defendant has not been served within 180 days, and imposing upon the clerk of the court the duty of entering such an order of dismissal. [Emphasis in original.]

"The trial judge dismissed on the basis of GCR 1963, 102.4 and 102.5, reasoning:

" 'Granting that Buscaino v Rhodes, 385 Mich 474, decided that the date a law suit is started is to be determinative of statute of limitations questions, the provisions of GCR 102.5 allow 180 days for service. 180 days after plaintiff started suit would be May 23, 1971. Plaintiff’s attorney service on the secretary of state was on May 5, 1972.

" 'Furthermore, plaintiff’s cause of action arose on July 27, 1969, the date of the accident. On July 28, 1972, more than the three years allowed by the statute of limitations had expired.’

"The unreported opinion of the Court of Appeals, affirming the trial court, reads:

" 'Plaintiffs brought an action seeking to recover for injuries sustained in an automobile accident. Defendant’s motion for an accelerated judgment was granted on the ground that the defendant had not been properly served with process and that the action was now barred by the statute of limitations; MCLA 600.5805(7); MSA 27A.5805(7).

" 'An examination of the record and briefs discloses no prejudicial error.

" 'Affirmed on the authority of Krontz v Estovez, 49 Mich App 30; 211 NW2d 213 (1973).’

"The statute of limitations was tolled from and after November 23, 1970, the date that this action was commenced.

"While amended Rule 102 obliges the clerk of the court to dismiss a complaint upon the expiration of 180 days from the date of the filing of the complaint and provides that he shall 'automatically enter an order of dismissal’, the rule is not self-executing and until the clerk in fact dismisses the complaint, the complaint is not dismissed.

"In this case the clerk of the court did not dismiss plaintiffs’ complaint pursuant to GCR 102.5. Personal service was effectuated before the trial judge entered his order dismissing this action on the ground that it was barred by the statute of limitations.”

Defendant’s absence from the state in Goniwicha was ruled to effectively toll the running of the statute of limitations.

Defendant’s motion for accelerated judgment was brought under GCR 1963, 116.1(5): "the claim is barred because of * * * statute of limitations, * * * or other disability of the moving party, * * * »

The procedure under this court rule is based upon GCR 1963, 116.3, wherein it is stated in part as follows:

"As to defenses and objections based upon sub-rule 116.1(5), the court may order immediate trial of any disputed questions of fact, and judgment may be rendered forthwith if the proof shows that the moving party is entitled to judgment on the facts as determined; or the court may postpone the hearing on the matter until the trial on the merits, and shall postpone the hearing if a jury trial has been demanded pursuant to right on or before the day of the hearing.”

We rule that an evidentiary hearing to determine the facts in this case is necessary.

We also note that the ruling in Krontz v Estovez, 49 Mich App 30, 34-36; 211 NW2d 213, 216 (1973), is important to an interpretation of the effect of MCLA 257.403(a); MSA 9.2103(a) and MCLA 600.705(2); MSA 27A.705(2) on the tolling statute, MCLA 600.5853; MSA 27A.5853, wherein the Court stated in part as follows:

"Plaintiffs did not serve the defendant until 16 months after the statute of limitations expired. During this time a means was available to obtain jurisdiction over the defendant. * * * Service of the summons may be accomplished by either mailing or delivering a copy of the summons to the Michigan Secretary of State and by either personally serving or mailing notice thereof to the defendant accompanied by a copy of the summons. This statute is applicable to nonresident defendants living in a foreign country. Holland v Ittner, 16 Mich App 547; 168 NW2d 476 (1969).

"Moreover plaintiffs have not shown that they were materially hindered in effecting service of process on the defendant. During the 16 months in question plaintiffs knew that the defendant resided in Argentina and were informed of an address where he could be reached. Although the defendant changed his address while residing in Argentina, there is no indication that mail addressed to the defendant would not have been forwarded by the Argentine postal authorities or that plaintiffs were unable to locate the defendant through reasonable diligence.”

We note that the present complaint filed in the instant suit by plaintiff alleged the accident happened in a service station driveway, or on private property. See Anno. Place or type of motor vehicle accident as affecting applicability of statute providing for constructive or substituted service upon nonresident motorist, 73 ALR2d 1351, § 5, pp 1357-1358. It is ruled in the following cases that valid service under the statute was limited to actions involving accidents occurring on the public highways and did not apply to accidents occurring on private property. Langley v Bunn, 225 Ark 651; 284 SW2d 319 (1955), Finn v Schreiber, 35 F Supp 638 (D NY, 1940), and Walton v Stephens, 119 F Supp 1 (D Va, 1954). It was contrariwise decided in the case of Schefke v Superior Court of San Francisco, 136 Cal App 2d 715; 289 P2d 542 (1955). We choose to follow the majority view, holding that the statute is not applicable to accidents occurring on private property.

In any event, the present case appears to be a proper one for remand to determine how long the statute of limitations was tolled by the absence of defendant from the state. Defendant was a resident of the state at the time of the accident and subject to the jurisdiction of our courts without resorting to any long-arm provisions in our law. It also becomes necessary to determine whether the plaintiff can show that he exerted reasonable diligence and was still unable to locate defendant and serve him. This will also include if plaintiff was materially hindered in effecting service of process on the defendant.

We also note that defendant is best able to show his whereabouts and residences at the times involved. In the case of Bratton v Trojan Boat Co, 19 Mich App 236, 244; 172 NW2d 457, 460-461 (1969), aff'd 385 Mich 585; 189 NW2d 206 (1971), we stated as follows:

"The pleading of the statute of limitations by the defendant was an affirmative defense and the burden of proving it was upon the defendant for it asserted the affirmative of the issue. Defendant was required to prove the facts essential to effectuate the bar. White v Campbell, 25 Mich 463 (1872), Sproat v Hall, 189 Mich 28 [155 NW 361] (1915), Tumey v Detroit, 316 Mich 400 [25 NW2d 571] (1947).”

We observe that the trial judge and attorneys did not have the benefit of the recent Supreme Court ruling in the Goniwicha v Harkai, supra, case at the time of the hearing and the granting of the motion for accelerated judgment and dismissal of the first suit in September of 1973, based on the provisions of GCR 1963, 102.5. We believe that the facts present in September of 1973, under Goniwicha, would have enabled the plaintiff to successfully withstand the motion for accelerated judgment inasmuch as the clerk had not dismissed the suit under GCR 1963, 102.5, and personal service had previously been obtained on the defendant.

The only avenue left open for the plaintiff to obtain relief as to this phase of the matter would be an application for delayed appeal. We understand these comments are gratuitous and do not constitute any opinion on our part.

The case is remanded to the trial court for a full hearing on the issues required to be determined under this opinion. We do not retain jurisdiction. Costs to abide final decision.

N. J. Kaufman, J., concurred.

1 "The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort.”

2 This indicates that pursuit of a remedy under GCR 1963, 105.8 would have been an exercise in futility. At any rate, the mere fact that the cited rule provides for alternatives to conventional methods of service does not automatically mean that all plaintiffs will have means available, through the rule, "sufficient to vest the jurisdiction of a Michigan court” over all defendants who absent themselves from the state. If that were the case, the tolling provisions of the statutes would be meaningless.