This was an action for personal injury plaintiff alleged he sustained in a collision with defendant’s automobile. The issue to be decided involves the statute of limitations. The facts in regard to the accident are unimportant.
The accident happened on August 20, 1950. Plain-. tiff’s complaint was filed within two years thereafter, but service of summons was not effected upon defendant until June 1, 1954. The plaintiff did not avail himself of the right to serve the Secretary of State (now Director of Motor Vehicles) as permitted by ORS 15.190. Instead, plaintiff waited until he could personally serve the defendant on the date mentioned. Defendant’s answer alleged, as an affirmative defense, the statute of limitations. Plaintiff’s reply alleged that defendant had either secreted herself within this state or had absented herself therefrom; that the provisions of ORS 12.150 applied, and the running of the statute of limitations was tolled during the period of defendant’s absence or hiding. Defendant filed a motion for judgment on the pleadings on the ground that ORS 15.190 which permitted service on the defendant by serving the Secretary of State avoided the tolling of the statute. The trial court sustained defendant’s motion and plaintiff appeals.
The several courts are divided upon this question.
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Busby v. Shafer
(1954)
“ ‘The principle we decide is, that where the party had his remedy complete and unaffected by the absence of the administrators or defendant, then such absence has not affected his right to sue, and is therefore not within the purpose of the act of 1865, preventing the lapse of time effectuating the bar of the statute during the absence of a party to be sued.’ ”
The Supreme Court of the United States has said: “The bar of the statute cannot be postponed by the failure of the creditor to avail himself of any means within his power to prosecute or to preserve his claim.”
Bauserman v. Blunt
(1892)
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Some of the cases to the contrary, and relied upon by plaintiff, are
Staten v. Weiss
(1957)
OES 12.150 provides that the statutes of limitation are tolled when the defendant is a nonresident or secreted within the state. Plaintiff contends that if we adopt the view that the availability of a statutory agent for service upon a motorist avoids the tolling of the limitation statute we will impliedly amend OES 12.150. Plaintiff says we would thereby amend the tolling statute to add a limitation, not otherwise expressed, that it does not apply when a motorist is a defendant. Some of the cases relied on by plaintiff, previously cited, do so hold. We cannot agree with this theory. The effect of our holding is merely to say that a motorist using the highways of Oregon, within OES 15.190, makes himself available for the service of summons upon him by the designation of a lawful agent for that purpose. The availability of the right to compel the attendance of the defendant or to obtain and enforce a valid judgment against him is all that a plaintiff is entitled to. When such a right is present there is no cause to apply the tolling statute at all.
OES 12.150 contains no limitation that it does not apply to a corporation which is required to provide a statutory agent, yet it cannot be successfully argued that all actions against such a defendant must be tolled because not specifically excluded from ORS 12.150.
Hamilton v. North Pac. S.S. Co.
(1917)
“It is settled law in this jurisdiction that a foreign corporation doing business in Oregon is to be deemed a resident of Oregon in such sense as that it is amenable to the processes of the Oregon courts, and a personal judgment may be secured against it based on the service of summons in this state. [Citing cases]”
The case then holds that a foreign corporation is not out of the state when it maintains an agent for service within the state and therefore the tolling statute, ORS 12.150, does not apply. The same rule should apply to a motorist who can be served as provided by ORS 15.190.
There is also a matter of policy involved in this ease. If we would accede to plaintiff’s argument it would mean that a plaintiff could indefinitely postpone the filing of an action against a nonresident motorist. He could await a propitious time when witnesses or parties were unavailable and thereby effectively deprive a defendant of any defense the defendant may have. The plaintiff’s theory could well lead to the equivalent of fraud.
Every trend of the law is, and must be, to expedite all litigation to the end that every cause and party receive prompt, full and judicious determination of all issues on the merits. We conclude that the trial court correctly allowed the challenged judgment.
Affirmed.