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WARD v. MILLER ET AL.

November 29, 1956

MRS. ETHEL WARD, RESPONDENT,
v.
ROGER MILLER AND SLOAN CONSTRUCTION COMPANY, INC., OF WHOM ROGER MILLER IS, APPELLANT. HERMAN O. WARD, RESPONDENT, V. ROGER MILLER AND SLOAN CONSTRUCTION COMPANY, INC., OF WHOM ROGER MILLER IS, APPELLANT.



The opinion of the court was delivered by: Moss, Justice.

November 29, 1956.

These two actions, one for property damage, and the other for personal injury, were commenced by the service of a summons and unverified compliant. The complaints are practically identical, except for the ad damnum allegations. Both of the complaints allege that the appellant, Roger Miller, is a nonresident of this State and was operating a dump truck in Sumter County, South Carolina. The summons and complaint were served upon the Chief Highway Commissioner of South Carolina, who accepted service thereof on February 13, 1956. The record shows that the Chief Highway Commissioner forthwith sent by registered mail a copy of the summonses and complaints to Roger Miller, the defendant-appellant, to Mt. Gilead, North Carolina, this being his home address. It also appears that the defendant-appellant signed the registry return receipt on February 15, 1956.

It further appears from the record that there was filed with the summons and complaint, in each of the cases, the affidavit of the attorney for the respondents showing compliance with Section 10-431, 1952 Code of Laws of South Carolina. There was also filed with this affidavit the original acceptance of service by the Chief Highway Commissioner and the registry receipt of the appellant, Roger Miller.

The appellant, on March 16, 1956, attempted to serve his answers to the complaints on the respondents' attorneys. The respondents' attorneys refused to accept service on the ground that the appellant was in default, not having served his answers within twenty days after the service of the summonses and complaints. Section 10-641, 1952 Code of Laws of South Carolina. The appellant then served notice of motion before the Trial Judge for order adjudging that the appellant was not in default, or failing therein, for an order allowing appellant to file his answers. The motions were heard by the Honorable J. Frank Eatmon on the record and affidavits submitted, and by his order, such motions were refused.

The appeal to this court raises two questions for determination. (1) Where an agent designated by Statute accepts service of process, is double time allowed within which to answer under the provisions of Section 10-465, Code of Laws of 1952? (2) Was there abuse of discretion in the refusal of the Trial Judge to open the default and permit the defendant to answer?

Service of the summons and complaint in each of the cases was made by serving such upon the Chief Highway Commissioner, as Agent for the nonresident appellant, pursuant to Section 46-104 of the 1952 Code of Laws of South Carolina, which provides:

"The acceptance by a nonresident of the rights and privileges conferred by the laws 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, the streets of any incorporated municipality or the public roads of this State or the operation by such non-resident of a motor vehicle on any such public highways, streets or public roads other than as so permitted or regulated shall be deemed equivalent to the appointment by such nonresident of the Chief Highway Commissioner or of his successor in office to be his true and lawful attorney upon whom may be served all summons or other lawful process in any action or proceeding against him growing out of any accident or collision in which such 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 highways, streets or public roads. Such 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."

It is then provided in Section 10-431 of the 1952 Code of Laws of South Carolina, as follows:

It is interesting to note that statutes in all of the forty-eight States and the District of Columbia now make provision for constructive or substituted service of process upon nonresident motorists becoming involved in automobile accidents in the State where the action for personal injuries or damages is brought. These statutes vary in detail but they generally provide that by using the highways the nonresident motorist will be deemed to have appointed some State official as his agent for service of process in such actions as fall within the purview of the statute. These statutes have been held to be constitutional when they contain provisions which make it reasonably probable that notice will be communicated to the person to be served, as by requiring the mailing of a copy of the summons and complaint to his last known address. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091; Wuchter v. Pizzutti. 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446, 57 A.L.R. 1230.

There is another reason why Section 10-465 of the 1952 Code of Laws does not apply. On March 1, 1870, the General Assembly of this State adopted "An Act to Revise, Simplify and Abridge the Rules, Practice, Pleadings and Forms of Courts in this State." 14 Stats. 423. In chapter XI of this Act, Section 427 provided that when service is by mail double the time required in cases of personal service should be given. But Section 433 of the same chapter provides: "The provision of this chapter shall not apply to the service of a summons or other process, or of any paper to bring a party into contempt." Thus, it is demonstrated from the original Act that Section 10-465 of the 1952 Code of Laws had no application to the Service of a summons by mail. The provision contained in Section 433 of the original Act is now incorporated, with amendments, which do not change the original meaning, in Section 10-473 of the 1952 Code of Laws.

"In the case at bar the service relied on by respondents is not the deposit of the paper in the post office, duly addressed and stamped — of which, indeed, there is no direct proof in the record — but the general and unqualified acceptance of service in writing by appellant through her attorney on a date certain. The general rule that such `an acknowledgement or acceptance of service is the full equivalent of actual personal service' (32 Cyc., 450) is the established law of this jurisdiction (Baker v. Irvine, 58 S.C. 436, 36 S.E. 742; Benson v. Carrier, 28 S.C. [119] 122, 5 S.E. 272. Brown & Parler v. Kolb, 92 S.C. 309, 310, 75 S.E. 529). If so, the fact that the paper was transmitted by mail is, we think, immaterial. Such fact could not, as we apprehend, convert the service by written acceptance into the `service by mail' contemplated by the statute, and make applicable the double-time provision of section 764 [now ...


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