Jones v. Watson

BISTLINE, Justice,

dissenting.

Defendants’ primary contention is that this Court’s holding in Lipe v. Javelin Tire Company, Inc., 96 Idaho 723, 536 P.2d 291 (1975), was neither a judicial repeal of nor an amendment to Idaho’s tolling statute, I.C. § 5-229. Citing cases from Washington, Arizona, Montana, Nevada, Utah, Alaska, New Mexico, Oregon, Oklahoma, and the Fifth Circuit Court of Appeals,¹ defendants urge upon us that no appellate court in the western states has restricted a decision similar to our Lipe case to exclusively prospective application. What the Court does which I find most objectionable is amend Lipe to give it an element of prospectivity only and then apply that doctrine of prospectivity to the case now before us. No other court has gone to this extreme. Plaintiffs did not request such a holding. They urged only that the Lipe decision be applied on a case-by-case basis.

Retroactivity and prospectivity went entirely unmentioned in Lipe for the obvious reason that the consideration of such doctrine played no part in the determination of the case.² Were the contrary the case, Justice Bakes, who authored that opinion, would not have left the matter in doubt.³

I. The statutes which are relevant to this case are: I.C. § 5-216, the applicable statute of limitations; I.C. § 5-229, the tolling statute; and, I.C. § 5-514, the long-arm statute. Statutes of limitations in Idaho were first enacted in the Territorial Code of Civil Procedure of 1881. The tolling statute appears to have been enacted at the same time. Idaho’s long-arm statute became effective March 11, 1961.

Prior to the adoption of the long-arm statute, in personam jurisdiction of the Idaho courts in civil matters began and ended at the State’s boundaries. In 1933 the legislature enacted an out-of-state motorist statute which created a narrow exception to the general rule of civil in personam jurisdiction. This statute, as amended, is now I.C. § 49-1601 and § 49-1602. It provided for “substituted” service on a non-resident motorist through the fiction that by exercising the privilege of using Idaho’s highways the motorist agreed that service upon the Secretary of State as his statutory agent rendered him subject to jurisdiction as though served in Idaho. Obviously, this statute dealt with only one facet of the field of tort law.

The passage of the long-arm statute changed the whole ball game. Personal jurisdiction no longer depends on service being made within Idaho’s boundaries. The statute provides that an individual may be subjected to the jurisdiction of Idaho courts for a number of reasons including the commission of any tortious act within this state or the transaction of business in Idaho.

Staten v. Weiss, 78 Idaho 616, 308 P.2d 1021 (1957), involved the out-of-state motorist statute and the tolling statute. Staten was gratuitously overruled in Lipe, which was not a motor vehicle accident case and did not involve I.C. § 49-1601 and § 49-1602. The defendant in that case merely sought to convince the Court that the rationale of Staten v. Weiss should not be applied in Lipe. In accepting that defense argument, this Court said: “We now adopt what we believe to be the more reasonable interpretation of these statutes.” However, the only statutes actually involved in Lipe were the long-arm statute and the tolling statute. Thus, overruling Staten v. Weiss was not essential to a determination of the case. Nor had the Lipe defendant sought the overruling of Staten.

While the majority opinion in its discussion of prospectivity and retroactivity of decisions approvingly quotes generalities from the 1968 case from Washington, State v. Martin, it fails to discuss the later and more pertinent case of Summerrise v. Stephens, 75 Wash.2d 808, 454 P.2d 224 (1969). The Washington court did not consider its earlier non-resident motorist case as controlling in a case involving the interaction of the tolling statute and the long-arm statute.⁴ It approved language in Reed, Adm’r v. Rosenfield, 115 Vt. 76, 51 A.2d 189 (1947) wherein the Vermont court observed that under the long-arm statute a non-resident defendant

“. . . is by this statute made as amenable to service of process as he would be if residing in this state. It follows that [the tolling statute provisions] relating to absence from and non-residence in this state now have no application to cases such as the one at bar.” 51 A.2d at 191.

All that this Court did in Lipe was to carry out the will of the legislature as evidenced by it in enacting the long-arm statute. Where the statute applies, the state boundaries cease to exist for the purposes of in personam jurisdiction. The Court did nothing more than declare the obvious. The Court made no law in the field. The change in law was made by the legislature in 1961.⁵ It would have been incorrect for the Court in its 1975 Lipe decision to have concerned itself with the prospectivity or retroactivity of that decision and it is equally incorrect for it to do so now.

II. If this Court had once made a decision holding that the statutes of limitation were inapplicable to cases in which jurisdiction was obtained under the long-arm statute, and if Lipe, in turn, had overruled such a decision then, the Court in Lipe would necessarily have had to be concerned with the retroactivity or prospectivity of an overruling decision. Understandably, reliance would be very much in issue. However, such is not the case. Until Lipe there was not an Idaho decision one way or the other as to whether the tolling statute would apply to actions in Idaho where jurisdiction was based on the long-arm statute. Hence, what both I and the majority say about reliance is purely an academic discussion.

It may be true, as plaintiffs urge, that many attorneys (including defense counsel in this case) in Idaho have believed that this Court, when called up to do so, might likely apply the Staten v. Weiss rationale to the later-enacted long-arm statute. This, however, was pure supposition, and there was ample evidence to suggest that it might not come to pass. Initially there is simply the great dissimilarity between the long-arm statute and the motor vehicle substituted service statute. In addition, Staten v. Weiss was largely predicated on Anthes v. Anthes, 21 Idaho 305, 121 P. 553 (1912), the authority of which was highly questioned by the codifiers to the 1947 Idaho Code.⁶ Also in 1966, a United States district court in New York declined to apply Staten v. Weiss to Idaho’s long-arm statute. Fullmer v. Sloan’s Sporting Goods Co., Inc., 277 F.Supp. 995 (1967). Beginning in 1969 this decision appears in the annotations to I.C. § 5-229. Plaintiff’s counsel in Lipe used it to counter the argument that the rationale of Staten v. Weiss should be applied in the Lipe case.

Furthermore, I see nothing in the appeal record to justify the majority’s assertion that the plaintiffs in this case relied on Staten v. Weiss as justification for their delay in bringing suit. Plaintiffs in their brief argued the reliance element. More than argument should be required.

“A point is made that the revision of the immunity rule should be prospective in its application. Such a contention would seem to be based on a concept of reliance. We find the suggestion without merit in the present case. It is doubtful that any defendant could justifiably rely on the rule after the expressions of dissatisfaction with the immunity concepts which appear in Korff [Korff v. G. & G. Corp., 21 N.J. 558, 122 A.2d 889] and Grober [Grober v. Kahn, 76 N.J.Super. 252, 184 A.2d 161], supra. In any event there is nothing in the record to indicate that the defendant did place any actual reliance on the doctrine. Under such circumstances there is no reason for declining to apply the usual rule under which the overruling of a decision has retrospective effect. See Dalton v. St. Luke’s Catholic Church, 27 N.J. 22, 26, 141 A.2d 273 (1958); Arrow, Builders Supply Corp., v. Hudson Terrace Apts., 16 N.J. 47, 49, 106 A.2d 271 (1954).” Wangler v. Harvey, 41 N.J. 277, 196 A.2d 513, 518 (1963).

Reliance is better referred to as justifiable reliance, and is akin to the acquisition of vested rights. This brings me to my final point which is that neither plaintiff nor defendant is entitled to rely on the specific provisions of a statute of limitations or a tolling statute.

While the majority opinion cites various general authorities on the doctrine of retro-activity and prospectivity and implies that there are overtones of impairment of contract in a case such as this, it ignores the proposition of law that statutes of limitation are purely remedial and do not affect the creation or destruction of substantive rights.

“Statutes of limitations find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. [Citation omitted.] They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the voidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a ‘fundamental’ right or what used to be called a ‘natural’ right of the individual. He may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.

“This Court, in Campbell v. Holt [115 U.S. 620, 6 S.Ct. 209, 29 L.Ed.2d 483], adopted as a working hypothesis, as a matter of constitutional law, the view that statutes of limitation go to matters of remedy, not to destruction of fundamental rights.” (Emphasis added.) Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628 (1945).

I disagree with the majority’s suggestion that the statute of limitation, the long-arm statute, and the tolling statute are elements of the contract. Each of these has to do with remedy. At all times the plaintiffs had the remedy of bringing their action in Idaho, and at all times the defendants have had their remedy of invoking the defense of the statute- of limitations. That these defendants were second in time to the defendants in Lipe should not in any way affect their right to invoke the statute.

Staten was decided before the passage of the long-arm statute. It dealt with a very narrow fact situation and with only the non-resident motorist statute. It should be obvious that the decision in Staten could in no way be construed as a controlling interpretation of a subsequently passed statute, especially where that statute constituted a revolutionary reform in the law of personal jurisdiction. That Staten needed to be overruled has no bearing on the problem of applying the correct interpretation of the long-arm statute, the statute of limitations, and the tolling statute to the parties in a suit in which the precise question arises.

1 . Hawkinson Tire Co. v. Hawkinson, 13 Ariz.App. 343, 476 P.2d 864 (1970), approved 107 Ariz. 255, 485 P.2d 825; Summerrise v. Stephens, 75 Wash.2d 808, 454 P.2d 224 (1969); State ex rel. McGhee v. District Court of 16th Jud. Dist., 162 Mont. 31, 508 P.2d 130 (1973); Bank of Nevada v. Friedman, 82 Nev. 417, 420 P.2d 1 (1966); Smith v. Forty Million, Inc., 64 Wash.2d 912, 395 P.2d 201 (1964); Bethel v. Sturmer, 3 Wash.App. 862, 479 P.2d 131 (1970); Snyder v. Clune, 15 Utah 2d 254, 390 P.2d 915 (1964); Byrne v. Ogle, 448 P.2d 716 (Alaska 1971); Dedmon v. Falls Products Corp., 299 F.2d 173 (5th Cir. 1962); Benally v. Pigman, 78 N.M. 189, 429 P.2d 648 (1967); Kennedy v. Lynch, 85 N.M. 479, 513 P.2d 1261 (1973); Phillips v. Anchor Hocking Glass Co., 100 Ariz. 251, 413 P.2d 732 (1966); Selby v. Karman, 20 Ariz.App. 206, 511 P.2d 650 (1974), vacated 110 Ariz. 522, 521 P.2d 609 (1975); Whittington v. Davis, 221 Or. 209, 350 P.2d 913 (1960); Jarchow v. Eder, 433 P.2d 942 (Okl. 1967).

2 . It is certainly true that the Lipe opinion did say that, “Lipe’s argument is sound if Staten is of continued validity; however, for reasons hereinafter given, we believe Staten was improperly decided, overrule it and thus uphold the ruling of the district court.” This simply conveys the thought that Lipe was without any argument other than Staten. The Court stripped Mr. Lipe of his Staten argument, and overruled it at the same time. This is not to say that Staten was controlling in the Lipe case. It clearly was not.

3 . Justices Bakes joined in the majority opinion in Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974), wherein the Court demonstrated its understanding that retroactivity and prospectivity must be met where there is a court decision overruling either a prior decision or voiding a statutory enactment: “Since this action involves a major change in a host’s liability in a negligently caused automobile accident, the question of its applicability to past, pending and future cases must be addressed.” 96 Idaho at 24, 523 P.2d at 1370.

4 . “We have not quoted or discussed our own case of Smith v. Forty Million, Inc., 64 Wash.2d 912, 395 P.2d 201 (1964) (discussed in both briefs), because we do not regard it as necessarily controlling.” Summerrise v. Stephens, 75 Wash.2d 808, 454 P.2d 224, 227 (1969).

5 . For a recent Utah case holding that the court doesn’t make the law, but merely declares what the court believes to be the correct application of a legislative enactment, see Prettyman v. Utah State Dept. of Finance, 27 Utah 2d 333, 496 P.2d 89 (1972).

6 . “In the case of Anthes v. Anthes, 21 Idaho 305, 121 P. 553, it was held to be immaterial that service could be had on the defendant in the state by means of leaving the same at his residence. This is contrary to the great weight of authority, and if the rule of Anthes v. Anthes is carried out to its logical conclusion, then the statute of limitations would never run in favor of a nonresident who came into the state and had an automobile accident, and service was obtained upon him by the means provided for service upon such nonresident. This is a generally recognized method of service of process on nonresident motor vehicle operators and obtains in Idaho, but the great weight of authority is that so long as service may be had by this substituted method, the statute of limitations will run. See 34 Am.Jur. 177, § 221; 34 Am.Jur. 179, § 223; Arrowood v. McMinn County, 173 Tenn. 562, 121 S.W.2d 566, 119 A.L.R. 855. The rule announced in Anthes v. Anthes has been followed in Bode v. Flynn, 213 Wis. 509, 252 N.W. 284, 94 A.L.R. 480.” Annotation to § 5-229, Vol. 2, Idaho Code at 161.