Wagner v. Truesdell
574 N.W.2d 627
S.D.
1998
Check Treatment

*1 Inc., 892, shall first see that such move- er Coop. direct line Elec. Power 488 N.W.2d (S.D.1992) (citation safety any omitted). ment can be made and if Here, pedestrian may by be affected such move- dispute facts are in whether either driver give signal by ment shall audible negligence “committed slight.” more than horn, sounding oper- Therefore, and whenever the whether either driver was contrib- ation other vehicle be so, utorily negligent, if degree affected signal such movement shall negligence question such is a properly of fact § required plainly 32-26-23 visible to Wood, jury. submitted to the SD at ¶ the driver such other vehicle 3, (citing 559 N.W.2d at 560 Theunissen v. to make A intention such movement. vio- 221, (S.D.1989)). Brisky, 438 N.W.2d 223-24 lation of this section is a Class 2 misde- Accordingly, [¶ 35.] we reverse and remand meanor, provide jury for new trial to the tools to added). (Emphasis The evidence did not make that determination. proposed instruction tri- and the al in refusing court did not err it. MILLER, C.J., AMUNDSON, [¶ 36.] 4. [¶ 32.] WHETHER ROYER’S GILBERTSON, JJ., KONENKAMP and COUNTERCLAIM BE SHOULD DIS concur. MISSED BASED ON HIS NEGLIGENCE. parties If negligent both were in caus 33.] accident, either still recover if negligence slight his in comparison with negligence of the other. 20- See SDCL

9-2: damages all actions to recover injuries property to a or to his 1998 SD 9 another, negligence caused WAGNER, Deloris E. Plaintiff plaintiff may fact that the guilty have been Appellant, contributory negligence shall not bar

recovery contributory negligence when the plaintiff slight comparison of the TRUESDELL, Clifford Defendant defendant, negligence with the but Appellee. damages such shall be reduced No. 19790. proportion plaintiffs to the amount of contributory negligence. of South Court Dakota. statute, plaintiffs Under this negligence 27, on Considered Briefs March 1997. compared negligence of the defen- dant, ordinarily prudent “the per- 29, Reassigned Oct. 1997. Crooks, 20, City son.” v.Wood Jan. Decided ¶ 2, (citing 559 N.W.2d Musilek v. Stober, (S.D.1989)). 434 N.W.2d cases, In some

[¶ 34.] whether one’s contributory negligence slight was more than may be decided as a matter of law. See Coop., Lovell v. Elec. Oahe (S.D.1986) (citing Stofferahn, Starnes v. 424, 432-33, (1968)). However, only when the facts “[i]t beyond any dispute plaintiff show negligence ‘slight,’ committed more than appropriate it is for the circuit court and this hold, law, aas matter of for a negligent defendant.” Westover East Riv- *2 (on

MILLER, reassignment). Chief Justice l.jDeloris Wagner appeals E. the dis- negligence missal of her action and a sum- mary judgment for Clifford Truesdell on grounds process. of defective service of We reverse and remand.

FACTS 1993, Wagner slipped and fell in a

[¶ 2.]In Rapid parking lot owned City, alleges fall South Dakota. She negligent mainte- the result of Truesdell’s nance of the lot and that she sustained vari- injuries damages as a ous result thereof. attempted negligence She to commence a against action in 1996. [¶ 3.]Truesdell suffered Alzheimer’s was, practically speaking, Disease and incom- However, petent.1 legally he had never been adjudicated incompetent and was no there judicially appointed guardian for him. Rath- er, his wife took care of and conducted power all of his business affairs under a attorney. Truesdell his wife owned Rapid City Vegas, homes both and Las required This Mrs. Nevada. periodic Vegas. During make visits to Las visits, she would sometimes leave her Rapid City husband in in the care of a close Richmond, friend named Gordon Richmond. Truesdell, who was not also related owned Rapid City. home when Rich- Truesdell, stayed mond cared for he with him in Truesdells’ home. 4.]Wagner attempted to commence the 15,1996, against January

action Truesdell on through service of a summons and Pennington County constable. Mrs. trips Truesdell was on one of her to Las service, Vegas attempted when the constable staying and Richmond was with Truesdell in Truesdells’ home. Richmond answered the and, door when the constable asked for Truesdell, he told the constable Truesdell mentally incompetent. The constable Anker, Rapid City, Stan H. plaintiff member, then asked for a but was told appellant. that Mrs. Truesdell was Nevada. Rich- Benjamin J. Eicher of Eich- that Trues- Wallahan and mond also informed constable er, Rapid City, appellee. for defendant and dell was in his care until Mrs. Truesdell was, time, completely passed away proceedings 1. Truesdell at the unable since the trial court manage his own or business affairs. on this matter. complications, As a result of his illness or its he (S.D. Bunnell, point, the constable indi- State v. returned. At that 1982) (internal quotations citations and omit since Truesdell was Richmond’s cated ted); Hazeltine, see also Larson v. custody, leave the he would ¶ 830, 835; Rans see to it Richmond. Richmond said he would State, (S.D.1986). papers got to Truesdell’s *3 purpose [¶ Court has held that 8.]This subsequently for Truesdell 5.]Counsel process of service of is to “advise the defen- summary motions to dismiss and for filed that proceeding dant an action or has been judgment, arguing pro- defective service of against' by plaintiff, commenced hearing A trial court cess. was held and the appear warn him that he must within a time granted expira- motions. Due to Truesdell’s place and at a named and make such defense limitations, applicable statute of tion of the Hartley Jerry’s as he v. has[.]” Radio & Wagner did not have new summons and 87, 90, Shop, Elec. served, complaint but instead , (1951) (citation quotation and internal appeal. omitted). We hold in this purpose of the statute was met.

DECISION emphasize pur we [¶ 9.]While 6-4(d)(10) pose of being SDCL as that of 15— Was service of the summons and notice, equally important to it state that on Truesdell defective? enough. notice alone is not This is the issue Supreme that the Minnesota Court was faced process that service of in this 6.]We hold Stich, with in v. Thiele 425 N.W.2d 580 case was not defective because there was (Minn.1988). Thiele, the court held that a compliance substantial with the ser- process requiring service of statute a defen 15-6-4(d)(10), mandates of which' vice SDCL personally by leaving dant to be served or requires that the summons “to the be served papers at the defendant’s abode personally.” defendant by leaving papers was not satisfied with have held that: [¶ 7.]We receptionist place the defendant’s at his compliance” “Substantial with a statute Supreme work. The Minnesota Court held compliance respect actual to means enough. that “actual notice” alone is not every substance essential to reasonable ob- phrased holding its as: “Actual notice jective of the statute. It means that a subject personal juris to will defendants court should determine whether the stat- compliance diction absent substantial with sufficiently ute has been followed so as to (citing Benny Pipes, Rule 4.” Id. at 584 v. carry out the intent for which it was (9th Cir.1986); F.2d Jackson adopted. compliance Substantial (9th Hayakawa, 682 F.2d Cir. is not shown it 1982)) added). unless is made (emphasis agree with the We appear purpose that the of the statute is Minnesota Court that actual notice shown to have been What consti- coupled compliance served. with substantial is suffi compliance tutes substantial with a statute satisfy personal process cient to depending hereby adopt is a matter on the facts of each requirements and we that hold particular ing case. as the law of our state.2 adoption entryway when defendants To further our of a substan- of defendants’ house rule, attempt tial it should be noted that it is refused to answer their door in an jurisdictions well settled in other pliance that strict com- service). exceptions avoid These to a strict read- service rules is not re- statutes are allowed quired party attempts when a that is to be served objective giving is attained because the notice Cohen, to avoid service. See Carlson nothing really done to else could been (1974) (holding Minn. that proper ensure service. See 4A Charles Alan placement process papers under wind- Miller, Wright & R. Federal Practice & Arthur wipers shield of defendant’s car as defendant (2d 1987). § it Procedure Ed. tried to drive off cient); avoid service was suffi- noted, present should be case does not ad- Credit, Winkowitsch, Flex Inc. v. attempts to avoid service. Our dress instances of (N.D.1988) (holding proper N.W.2d 236 ser- holding case is a narrow one. in this by placing papers effected vice was pose Clearly, realities of a case must of the statute were met.

[¶ 10.]The proper compliance.” when constitutes “substantial be considered reading questioned. To follow the strict 15-6-4(d)(10) urged by SDCL GILBERTSON, (concurring in Justice re- absurdity. The constable could would be an sult). have handed the to Truesdell n parties’ agreement [¶ 16.]Given immediately then Richmond would have tak incompetence, agree Truesdell’s away en them majority holding the constable should logically There is no Truesdell’s directly simply have served Truesdell “middle-person” in this need case for absurdity in lead to this case. What would step purpose to fulfill the of SDCL 15-6- practical have been the effect of such ser- 4(d)(10). *4 mentions, majority vice? As the the con- Wag- what more could ll.]In papers stable would have handed the The' went ner have done? constable then and Richmond would have for Truesdell’s home and asked Truesdell. immediately away taken them from Trues- was Richmond informed that Truesdell dell to to Mrs. Truesdell or the Trues- mentally incompetent was in his care. and exactly hap- dells’ That is what When the constable asked for Mrs. Trues- Nevertheless, pened. I disagree with the dell, he was that she was in Neva- informed majority process view that valid service of presented da. He then to Trues- accomplished through was substantial com- dell’s caretaker who assured him that he pliance requirements. service attorney would see to it that re- Truesdell’s advocacy [¶ 17.]An of the doctrine of sub- time, papers. ceived the The entire Trues- compliance absolutely sup- stantial finds no dell, disputed mentally who it is not was port in our concerning statutes service of house, incompetent, present was in the process. Gillespi, In Matter practical purposes for all could have com- (S.D.1986), unanimously this Court prehended happening what was he was when process by struck down service first-class process papers. Wag- handed the service of Although mail. the defendants admitted substantially ner complied with 15-6- SDCL they pleadings, received the we held 4(d)(10), satisfy enough was “mandatory.” service was Gillespi, 397 process requirements in this case. at Subsequently in Mueller v. proceed- reverse 12.]We and remand for Zelmer, (S.D.1994), ings opinion. consistent with this by county carried out a nonresi- which, time, dent at the did not conform to KONENKAMP, [¶ 13.]AMUNDSON residency requirements of SDCL 15-6- JJ., concur. 4(c). relying Rather than on claims of GILBERTSON, JJ., [¶ 14.]SABERS and compliance, substantial ma- three-Justice concur in result. jority upheld only the service as valid be- signed cause the defendant had an admission SABERS, result). (concurring Justice In doing majority service. so de- agree Wagner effectively [¶ 15.]I clared: by served substantial defendant,knows [The] fact of the action 15-6-4(e) (substituted service). with SDCL because he received contemplates a situation where the summons and in connection (Truesdell) person sought to be served attempted with an but invalid (Richmond). family resides with another where no admission of service exists is not situation, presents This ease the converse statutory sufficient of the action. .notice i.e., (Richmond) family “the of another” re- Here, Mueller, sides with Truesdell. (citing strict and 525 N.W.2d at 51 Brown v. 15-6-4(e) State, (Ga.Ct. interpretation technical Ga.App. SDCL 395 S.E.2d 73 disallowing pur- App.1990)). service would dissenting, argued undermine Two Justices pose statute, of the spirit pur- interpretation statute. The and the for a strict more the admission of service did not Here Truesdell could not be “found conve- finding that niently” service. constable improper the initial was denied direct save access himto Richmond.4 As a substi- trial valid service of Without tute, accepting pa- Richmond’s offer of Hartley jurisdiction no to act. court has pers complied on behalf of Truesdell Shop, Jerry’s Radio & Electric 74 S.D. 15-6-4(e) if SDCL Richmond was either a (1951). One research' member of Truesdell’s or Truesdell over 100 and find the' decisions residing with Richmond. proper law has remained the same. No jurisdiction. Ayers, service. No Weather courts, accept [¶ 20.]Some Sundback, wax & Reid Co. v. 58 ing process, substitute service of have held a (1894). N.W. 4 “family necessarily member” is not limited to (Henderson Mueller, 525 N.W.2d at 52 kinship with the defendant Amundson, JJ., dissenting). marriage. blood or Maryland See Couts v. (Fla. Casualty Company, 306 So.2d majority’s ready adoption of the [¶ 18.]The fact, Dist.Ct.App.1975). some courts have compliance in mat- doctrine of substantial kinship found “irrelevant” in determining it ter at hand now makes difficult to distin- family membership in this context. Id. Oth opposite guish the instant case from the re- “family” er courts have said that for substi authority. sult of the above South Dakota *5 purposes tute service includes more than the Moreover, adoption provides of the doctrine husband, their wife and children. Kenner v. guidance no to the bench and bar as to what Schmidt, 218, 537, 252 Or. 448 P.2d per- constitutes substantial with (1968). Schiff, also Hauser v. See 341 So.2d requirements. age In sonal service this of (Fla.Dist.Ct.App.1977); Midwest Ac computerized FAX machines and electronic Blount, ceptance Corp. 777 S.W.2d mail, uncertainty unacceptable. such Ac- Annotation, (Mo.Ct.App.1989); isWho disagree cordingly, majority’s I Family Member Relating Within Statute adoption of the doctrine of substantial com- of by Leaving Copy to Service Process With pliance in this context. of (1942). Family, Member 136 ALR 1505 of holding Wagner than sub- 19.]Rather authorities, Despite expand these I not would stantially complied of with service “family” the definition of Truesdell’s to in I process requirements, would hold she ac- Rather, I clude Richmond. would hold complished valid substitute the “residing] family in the of summons and under SDCL 15-6- another,” being Richmond. 4(e).3 provides pertinent part: following Dictionary Service the manner shall also Law defines “re- [¶ 21.]Black’s dwell, “[l]ive, abide, sojourn, stay, If as to constitute service. the defen- side” remain, Dictionary, conveniently, lodge.” dant cannot be found service Black’s Law (5thEd. 1979). may leaving be made at his “The word ‘live’is com- ” dwelling presence monly synonym in the of of for a member used as ‘reside[.]’ Curtis, family age his over the of fourteen or Curtis v. 330 Mich. (1951).

if family attempt the defendant resides of While other cases another, age legal with a member of such what constitutes a of define residence voting with which he resides. for various such as and ven- normally denying 3. 4. While we do not not attribute no ill-will to Richmond in address. issues upon by arising ruled circuit for court and to Truesdell. the con- constable access To Dakota, (Watertown appeal the first time on trary, thought it is clear Richmond he was assist- Co., 82, ¶ 26, Mn. & Eastern R. 1996 SD by accepting the constable on behalf 571, 577), validity N.W.2d issue incompetent Truesdell. on its process goes juris trial court’s point had been denied face at this the constable Nolan, diction to act. Nolan v. complete his access to Truesdell to service with (S.D.1992). issues be raised Jurisdictional authority proceed question. Logically, he subject by- are at time and to de novo review Richmond, opted alternative offered for the 71, 6,¶ Hayes, this court. Devitt v. being leaving with Richmond. incompetent incapable handling in the stat- was ue, the word “reside” use of Therefore, his own business affairs. Mrs. point to a substitute ute on definition, Truesdell handled all of his business affairs being where the general more through power attorney normally “stays.” or “lives” person Nevertheless, giver. role of filled the care |122.]SDCL requires 25-7-5 peri- necessitated business Mrs. Truesdell’s spouse spouse her when “the or support his Vegas during odic travels to Las infirmity himself or unable trips Mrs. Truesdell would leave Truesdell goes fi- This farther than mere herself.” than Richmond’s care. Richmond was more fact that Truesdell nances. The supervision a domestic servant under the financially solvent meant if he was little been repeatedly Mrs. Truesdell. He is referred to incompetent mentally that he could so in the record as a “close friend” of the Trues- daily provide for his needs. Mrs. Truesdell dells. The record does not indicate whether during complied with this statute her ab- paid Richmond was for his services as Trues- by obtaining the services of Richmond sence giver although might presume .care one dell’s such, to care for Truesdell. As recompense he receive some for his time did “living” “staying” “residing” or or Nevertheless, and effort. both Mrs. Trues- Richmond at the time of the service. Trues- dell’s affidavit and Richmond’s affidavit himself, residing by dell was not strongly suggest that Richmond took care of anyone his wife or with other than Richmond. monetary paid gain Truesdell not as a situations, unique [¶ 23.]In some such as but, rather, employee, capacity in his as “a one, ignore purpose it would of ser- long-time family friend of Defendant Cliff vice to declare no valid ser- wife, Rosemary[.]” ... and his discussing purpose vice exists. provides ample This evidence of a relation- substitute service the Court of Iowa ship transcending the normal bounds of a explained: employer/employee relationship. mere Moreover, when the constable served Rich- merely requires [0]ur statute that the no *6 mond, Richmond told the constable he had tice be left ‘with some member of the Truesdell, custody of not that he was work- age’ over 14 ... and this is Again, for the Truesdells. this reflects service, equivalent upon made to actual Richmond’s own view that he was not a mere supposition that such sustains such but, rather, employee in the Truesdells’ home sought a relation of confidence to the one responsibility temporary that he held for the likely to be as that he will served be to care, safety supervision un- bring the notice his attention and there til Mrs. Truesdell’s return. This is precisely effect what actual service is relationship indicative of confidence and accomplish. intended reasonably trust that could assure the con- Butler, Thompson v. Iowa complaint stable the summons and (1932) 164, 167 (quoting N.W. Hass v. Lever would be to the attention of Trues- ton, (1905)). 128 Iowa 102 N.W. regular giver, dell’s care Mrs. Truesdell. occupy The record is clear that Richmond did |V25.]Based upon facts, unique I special unique relationship of friend residing hold ship and confidence the Truesdells that 15-6-4(e) Richmond for of SDCL certain, likely, made it if not that he would and, therefore, authority Richmond had bring the summons and to the accept substitute service of on Trues- thereby attention of Mrs. Truesdell and ef dell’s behalf under statute. On that fect what actual service is intended accom basis, pro- would conclude ie., plish, actual notice of the action filed and cess on Richmond was valid and sufficient to opportunity respond. Liberty an Mut. jurisdiction vest in the trial to consider Rapton, Ins. Co. v. 140 Ariz. 680 P.2d this matter on the merits. (Ariz.Ct.App.1984). relationship to the [¶ 24.]As between Rich- Truesdells,

mond and the there is no dis- agreement among parties as a re- Disease, sult of his Alzheimer’s