Kerr, Administrator v. Greenstein , 213 Ark. 447 ( 1948 )

The majority opinion, as an academic treatise on the science of interpretation and explanation, (sometimes spoken of as hermeneutics) would not provoke disputation; but when applied to the controversy presented by the appeal of Kerr as Administrator the reasoning seems fallacious. It rests upon the proposition that merely because a tortfeasor is a non-resident he has a common right to avoid trial in the state where his alleged negligence caused injury, followed by death.

The decision would be correct if it can be said that the General Assembly was more concerned with actual ownership of a motor vehicle than it was with the result so clearly expressed in the statute.

Act 40 of 1941 amends Act 39 of 1933. In each the emergency asserts that if injury or damage occurs within the State ". . . on account of the acceptance of the rights and privileges to so use such highways, . . . and whereas, when such damage is so done by such non-resident owners or their agents, servants, or employees by the operation of motor vehicles, which are dangerous machines, and the use of which [is] attended by serious damages to persons and property, and whereas in cases of such injury and damage by such non-resident owners those suffering damages thereby have no convenient method by which they may sue to enforce their rights, . . . this Act [is] necessary", etc.

Clearly the legislative intent was to create a service agent for convenience of one injured by a non-resident who had accepted the State's conditional grant of highway use, and the word "owner" is of the same dignity as "chauffeur, operator, driver," mentioned in Sec. 1 of the Act. This construction finds support in subsequent designations, where the reference is to "such" non-resident owner, or "said" non-resident owner. Failure of the lawmakers to repeat "chauffeur", "operator" or "driver" is held by the majority to disclose a design not to include them, notwithstanding the fact that rights were being created for citizens who were injured in property or person.

While the precise question in the instant appeal was not before the Court in Oviatt, Administrator, v. Garretson, 205 Ark. 792, 171 S.W.2d 287, (ownership of the car driven by Mrs. Tarnutzer having gone unchallenged) it is of interest that attorneys who represented the executor in that case (who are now attorneys for the appellee here) treated the Act as applicable to any non-resident motorist who made use of Arkansas highways. At page 21 of that appellant's brief it is said, "If this is true the statute that provides that one who uses the highways . . ." etc. Page 27: "Manifestly under our statute there is no interest coupled with the agency power of the Secretary of State to accept service of summons such as to survive the death of the non-resident user of our highways. . . ." Page 28: ". . . Nor is [the Secretary of State] given any interest in any cause of action or suit arising out of the use of the highway by the non-resident motorist". At page 31 the reference is to "the Buick car driven by Mrs. Tarnutzer".

Mr. Justice McFADDIN, in writing the Court's unanimous opinion in the Oviatt case, said: "There was no provision in [Act 39 of 1933] whereby service of process could be obtained upon the estate of a deceased non-resident owner or driver. To remedy this situation, the General Assembly of 1941 passed Act No. 40, which amended Act 39 of 1933, and provided that in a suit against any non-resident owner or driver, in case of death, . . ., the action could be filed or continued against the administrator or executor". Again it was said: "It is true that Act 40 of 1941 stated that by using our highways a non-resident owner or driver constituted the Secretary of State as his agent for service of process". And finally, "A non-resident who utilizes the State's highways . . . was bound by such statutes."

There was no recorded expression at variance with these definite statements of what the two Acts then stood for. Since the statutes are the same today that they were when the construction concurred in by counsel for the appellant was reached in 1943, I can see no overpowering necessity for judicial emasculation of Act 40 in the interest of a so-called "common right" — that is, the right not to be sued in the State where the injury occurred.

In Tallman v. Tallman, 23 N.Y.S. 734, 3 Misc. 465, the word "interpretation" was said to have been defined as the process by which the intention of a writer is determined, either from his words, "or from other conjectures, or both". Rutherford, 2 Inst. 414, divides interpretation into three sorts — literal, which is where we collect the intention from the words used, and from no other source; rational, where the words do not express the writer's intention perfectly, but either exist or fall short of it, so that we are going to collect it from probable or rational conjectures only; and mixed, where the words, though they do express the writer's intention when they are rightly' understood, but are in themselves of doubtful meaning, and we are forced to have recourse to conjectures to find out in what sense they are used".

Effect of the majority opinion is to say that, although the lawmakers, by express words, said their intention was to provide a method for serving non-resident owners, chauffeurs, operators, drivers, of motor vehicles, yet when in subsequent provisions these non-residents were spoken of as "said" owners, or "such" owners, then there was nothing in the Act by which to determine in what sense "such" and "said" were used, hence chauffeurs, drivers, and operators could not have been in the legislative purview; and though non-residents use of our highways, a construction in derogation their "common rights" must not be applied.

It was said in Roberts v. Portland Water District,126 A. 162, 124 Me. 63, that "interpretation" is ascertainment of true sense of any form of words, and "construction" is drawing of warrantable conclusions not always included in direct expression.

I am unable to understand how any warrantable conclusion other than that the service was good can be drawn from Act 40, and I still agree with what was said about it in the Oviatt case.

The rule that a particular statute must be strictly construed does not mean that by narrow or forced interpretation matters obviously within the legislative purpose must be excluded merely because, after an intent has been expressed, it was not followed by precise words when the apparent object was subsequently alluded to. No practice is better established than this. Reports are full of cases in which it is said that intention of the lawmakers is to be derived "from a view of the whole and of every part of the statute, taken and compared together. . . . When words are not explicit, the intention is to be collected from the context and the occasion and necessity of the law, and from the mischief felt and the remedy in view; and the intention is to be taken or presumed according to what is consonant to reason and good discretion". The quotation is credited to Chancellor Kent. See Walker's opinion, In re Merrill, 102 A. 400.

The case presented by Kerr results in a determination by this Court that the "mischief felt and the remedy in view" had no relation to the act of a non-resident who came into the state and as driver of a borrowed car negligently used the highways. The majority says there are no words in the Act "consonant with reason and good discretion" from which an intent to hold any but an owner can be presumed. "Owners, agents, servants, or employes," found in the emergency clause, and "owner, chauffeur, operator, driver", appearing in Sec. 1, are declared to be strangely ambiguous and obscure, hence without meaning.

Mr. Justice ROBINS joins in this dissent.