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The offense of requiring or permitting, Writ service reading

tele. laborers and mechanics in the employ of a phone. contractor to work upon a public work of 2. Reading a summons to defendant over the United States for more than eight hours the telephone is not a sufficient service unin a calendar day does not consist in the der a statute providing that summons shall doing of the work, but in requiring or per- be served by reading the same to defendmitting it to be done, and therefore where ant, where at the time the statute was enthe work is directed from the jurisdiction acted the telephone was not in existence within which the indictment is brought, the as a general means of communication. indictment is sufficient although the work is done in another jurisdiction. United (Clark, Ch. J. and Allen, J., dissent.) States v. Sheridan-Kirk Contr. Co. 149 Fed. 809.

(January 13, 1915.) The Federal hours of service statute will not relieve a carrier from liability for fail. PPEAL by defendant from a judgment ure to carry a passenger to his destination without delay, as the statute makes' excep-County affirming a judgment of a justice tions in cases of emergency, and if a train of the peace refusing to set aside a judg

able to complete its journey within the time limited because of such an emer

ment in plaintiff's favor in an action on an gency, it would not have been a violation of account. Reversed. the act to have continued, and if the delay was not due to such an emergency, it must Statement by Hoke, J.: have been due to defendant's negligence. On the hearing, it appeared that in 1911 Black v. Charleston & W. C. R. Co. 87 S. plaintiff instituted an action on account C. 241, 31 L.R.A. (N.S.) 1184, 69 S. E. 230. against defendant, before a justice of the The fact that a civil action is given for

peace in said county, and on March 16, the recovery of a penalty for violation of a statute limiting the hours of service of em 1911, recovered judgment for $173.75, deployees does not prevent the same violation fendant not appealing at this time; that being made a misdemeanor. People v. New defendant instituted a civil action against York C. & H. R. R. Co. 85 Misc. 482, 147 N. plaintiff to set aside said judgment, claimY. Supp. 789. This case was reversed in 163 ing that he owed plaintiff nothing, and App. Div. 79, 148 N. Y. Supp. 495, on the that he had never been served with sumground that the Federal hours of service act

mons in said cause, and for many months had superseded the state statute as to em

after its rendition he had no notice or ployees engaged in interstate commerce, and therefore a conviction under the state 'stat- knowledge of the existence of the judgment ute was void.

R. L. S. or of any suit against him by plaintiff.

Judgment in that cause was entered in favor of the present plaintiff, and on ap

peal judgment was affirmed, the court beNORTH CAROLINA SUPREME

ing of opinion that, on the facts presented COURT.

in that record, defendant could only proS. LOWMAN & COMPANY

ceed by motion before the justice to set aside the judgment. See Ballard v. Lowry,

163 N. C. 487, 79 S. E. 966. Pursuant to T. J. BALLARD, Appt.,

that intimation, defendant, on notice duly (168 N. C. 16, 84 S. E. 21.)

served, made the present motion to set

aside the judgment before the justice, J. Justice of the peace judgment with- | H. Benton, Esq., and on the ground, among out simmons- remedy.

others, that the summons in the action 1. The remedy of one against whom a had been originally served by telephone, judgment has been entered by a justice of the peace without service of summons is by the sheriff being at Wadesboro and defendmotion before the justice to set aside the ant at Morven, 9 miles distant. On the judgment.

hearing the justice found that the sheriff Note. - Services of writ or process by | The court pointed out that by the statute telephone.

the officer was entitled to fees for service,

and fees for mileage traveled in making the A search has disclosed but one reported service, and thought that the statute concase in addition to S. LOWMAN & Co. v. templated a personal service, not only by BALLARD passing upon the validity of serv- reading the process in the hearing but in ice of process by telephone.

the presence of the witness; and said that In Ex parte Terrell, Tex. Crim. Rep. in case of reading the subpæna over the - 95 S. W. 536, it is held that reading a telephone, the identification could only be subpæna to a witness over the telephone is by voice, which could apply only in a few not a sufficient service under a statute pro- cases, and would be at least a rather unviding that "a subpæna is served by read satisfactory method of identification, ing the same in the hearing of the witness.” The validity of an acknowledgment or

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had “read the summons by telephone to Hoke, J., delivered the opinion of the defendant, and, recognizing that it was court: defendant by conversation had between On the facts appearing of record, and them at the time, he had made the return in like case whenever the remedy is avail. on the process served,” etc. The justice, able to him, the procedure open to defendbeing of inion that there had been a valid ant is by motion before the justice who service, refused to set aside the judgment, tried the cause. This was virtually held and on appeal to superior court, this ruling on a former appeal between the parties was affirmed, the material portion of his (163 N. C. 487, 79 S. E. 966), and the Honor's judgment being as follows: position is in accord with our decisions on

“The court finds as a fact that J. T. the subject (Thompson v. Lynchburg NoShort was a deputy sheriff of Anson county tion Co. 160 N. C. 519, 76 S. E. 470; on the 27th day of February, 1911, and Clark v. Deloach Mills Mfg. Co. 110 N. C. read the summons issued in said cause by 111, 14 S. E. 518; Whitehurst v. Merchants' said justice of the peace to the defendant, & F. Transp. Co. 109 N. C. 342, 13 S. E. T. J. Ballard, over the telephone line con 937; Mckee v. Angel, 90 N. C. 60). necting Wadesboro and Morv and that

In Tii

pson v. Lynchburg Notion Co. the said deputy sheriff was well acquainted supra, that being a case where service had with said defendant, and recognized his been regularly made by publication and voice over the telephone in the conversation defendant had neither appeared nor between them at said time, whereupon said swered, the decision was made to rest on deputy sheriff made the return and indorse- $ 1491 of Revisal, which allowed an appeal ment upon the summons. Lpon these facts to be taken in such cases within tifteen the court finds that, as a matter of law, days after personal notice of the rendition said service and reading of said summons of the judgment, but Associate Justice Alover the telephone was a legal and valid len, in his well-considered opinion, is careful service of said summons, and the court so to note that, in case of defective process, holds. From this judgment, the defendant or where there is the appearance of service excepts and appeals to the supreme court.” when in fact there was none, the remedy by

motion before the justice is properly availMessrs. Lockhart & Dunlap for appel- able. Both in the superior and justice's lant.

courts the statutory limits, as to tiine Messrs. Gulledge & Boggan, for appel- within which motion of this character shall lee:

be made, are cases where the proceedings Defendant's motion to set aside the judg. are, in all respects, regular, and do not ment rendered by the justice of the peace ice of process or an entire absence of it.

apply in cases when there is defective servmust fail, because it was not made within Massie v. Hainey, 165 N. C. 174, 81 S. E. one year from the time he had notice of the

135; Mc v. Angel, 90 N. C. 60, supra. action and judgment rendered against him Authority here is also to the effect that, by said justice.

where a statute provides for service of Mutual Reserve Fund Life Asso. v. Scott, summons or notices in the progress of a 136 N. C. 157, 48 S. E. 581; Clement v. cause of certain persons or by designated Ireland, 129 N. C. 220, 39 S. E. 838; More- methodis, the specified requirements must head Bkg. Co. v. Duke, 121 N. C. 111, 28 be complied with or there is no valid servS. E. 191; Roberts v. Allman, 106 N. C. ice. Martin v. Buffaloe, 128 N. C. 305, 391, 11 S. E. 424; Ruffin v. Harrison, 91 83 Am. St. Rep. 679, 38 S. E. 902; Smith N. C. 398.

v. Smith, 119 N. C. 314, 25 S. E. 878; The reading of the summons to the de- Allen v. Strickland, 100 N. C. 225, 6 S. E. fendant over the telephone, where the of- 780; McKee v. Angel, supra. ficer was well acquainted with and recog. This, then, being proper procedure, and nized his voice, is a sufficient reading and the only service of the original process in a legal service.

this cause having been by means of the 12 Cyc. 423.

telephone, "the sheriff being at Wadesboro oath taken over the telephone is discussed by telephone, see the note to Planter's Cotin the note to Wester v. Hunt, 30 L.R.A. ton Oil Co, v. Western U. Teleg. Co. 6 L.R.A. (N.S.) 358.

(N.S.) 1180, and the following later cases The cases passing upon the validity of a in this series: Knickerbocker Ice Co. v. presentment of bill or note by telephone are' Gardiner Dairy Co. 16 L.R.A. (N.S.) 746 ; presented in the note to Gilpin v. Savage, and Willner v. Silverman, 24 L.R.A. (N.S.) 34 L.R.A.(N.S.) 417.

895, Generally as to necessity and sufficiency As to validity of notice sent by telegraph, of identification as a foundation for the ad- see note to Western U. Teleg. Co. v. Bailey, mission of a conversation or communication | 61 L.R.A. 933.

A. L. R.

and defendant at Morven, 9 miles distant,”, opportunity, too, to ascertain the position the question chiefly and directly presented and authority of the officer, and being the by this appeal is whether, in this jurisdic method contemplated and described by tion, there can be a valid service of original the statute at the time it was passed, and process by means of the telephone. Our the only one recognized and pursued for statute on the subject (Revisal, 8 439) pro- twenty years thereafter, should not be alvides that the summons "shall be served, tered, if at all, save by express provision in all cases except as hereinafter provided, of the statute law. by the sheriff or other oflicer reading the The only valid objection to be made to same to the party or parties named as this position is that it may, at times, make defendant, and such reading shall be a for inconvenience of the officer, but even as legal and sufficient service." This method to him the proposed change is of doubtful of serving process was established by the benefit. We know that a sheriff, or other legislature of 1876 and 1877, and at the officer having a process of this character in time the telephone as a general system of charge, is properly held to a strict account communication was not in existence. An as to the verity of the service. If he makes interesting account of its origin and de- a false return, he and his bondsmen may velopment will be found in Telephone | be subjected to serious penalties, and, Cases, 126 U. S. 1, 31 L. ed. 863, 8 Sup. I looked at only from the officer's point of Ct. Rep. 778, the volume being devoted to view, there is grave question if in the a proper report of the telephone cases, effort to perform this important duty he from which it appears that the patents should be subjected to the additional uncerwere applied for in 1876; that the litigation tainties, sure to arise by recognizing the concerning them was continued for some proposed manner of service. thing over eleven years, and it was not On authority the question does not seem until 1887 that decision was made declar- to have been very much discussed in the ing the rights in dispute to be in Professor courts. The nearest case we have been able Bell and his associates, and Ithough the to find on the subject is in Ex parte Teractive development of the system was im- rell, Tex. Crim. Rep. — 95 S. W. 536. mediately and successfully entered upon, That case was an attachment for contempt the telephone, as now operated, did not against a defaulting witness, their statute come into very general use and application requiring service of subpæna by “reading until about the beginning of the present same in the hearing of the witness," and century, or a short period preceding that it was held that service by telephone was date.

no valid service, and the position derives At the time, therefore, when this legis- some support in a New York case of Gilpin lation was enacted, the only method of v. Savage, 201 N. Y. 167, 34 L.R.A. (N.S.) service contemplated or provided for was 417, 94 N. E. 656, Ann. Cas. 1912A, 861, by reading the summons in the personal to the effect that presentment of a note and presence of the party, and we are of opin- demand for payment must be by actual exion that this is and should continue to be hibit of the instrument, and that a demand the correct interpretation of the statute, made by telephone was insufficient. We as it is now written. This service of orig. are aware that, in a number of cases, it inal process by which courts of justice ac- has been held that, under regulations require jurisdiction over the rights of person quiring service of notices to be in writing, and of property of the citizen has always service by means of a telegram, written out been, and properly, regulated with circum- by the agent and delivered, has been upspect care. In the Code of 1868, it could held, but these were generally in instances only be done by leaving a copy of the sum- where the parties had voluntarily adopted mons under the court seal; later, in 1876 that method of communication. And where and 1877, the seal was omitted when the the principle has been approved in referprocess ran to the county of the officer who ence to court process, the statute did not issued it, and at the same session a service require that service be made by any parby reading by the sheriff or some officer ticular or designated person; and the party was established; both of these changes, it being charged with the duty of having the will be noted, being by legislative enact. notice served, the court has held that such ment. And this method of service, by read-party could make the company his agent ing in the personal presence of the party, to write the notice, within the meaning of affording as it does to the sheriff a more the law. Such was the case presented in satisfactory and certain means of identi. Western U. Teleg. Co. v. Bailey, 115 Ga. fying the person on whom the service is | 725, 61 L.R.A. 933, 42 S. E. 89, a case to made, and giving assurance to the litigant which we were cited. On service of writs of the true import of the act by present of certiorari, the statute required that the exhibition of the process, giving him better applicant should cause written notice of its


proper sanction to be served on his oppo-, of the defendant. What more can be necesnent, and service by telegram was upheld sary? Whether or not there might be on the ground that, as the statute required greater or less certainty as to the identity the party to cause notice to be served, and of the defendant, in service by phone, when did not designate by whom, the plaintiff he is brought to the phone by an agent of could designate the company as his agent, the sheriff, or the sheriff recognizes him, and the notice so written out would be con- is a matter for the legislature if that body sidered a sufficient compliance with the should find that the law needs amendment. law. Even in that aspect, the case seems As to the identity of the sheriff, that is to have caused the court much perplexity, a matter for the court on the service of and one of the judges dissented.

every process, which is authenticated by Again, there are cases in which notices his signature. As to the identity of the of injunction were served by telegram and defendant, the officer takes that risk wheththe service was sustained, but these deci- er he sees him (for he may not know him sions were in application of the principle personally except by information) declared by the English chancellors, to the phones him. The sheriff is under the higheffect that, under certain circumstances, if est obligations to be certain as to the à party in an injunction proceeding knew identity of the defendant; for he is acting of the existence of the order and inten- under the oath of his office, and is also tionally violated it, or knowingly or in- liable under a heavy penalty for making a tentionally acted so as to render the same false return. of noneffect, he could be held for contempt. The law does not require that the sheriff Vansandau v. Rose, 2 Jac. & W. 264, 22 shall "leave a copy” with the defendant. Revised Rep. 114; Hearn v. Tennant, 14 | That was long since dispensed with. Nor Ves. Jr. 136, 9 Revised Rep. 253; Rulings has it ever required that he should see the by Lord Chancellor Eldon, the first referred defendant. There can be no question that a to in Cape May & S. L. R. Co. v. Johnson, near-sighted sheriff or deputy could serve 35 N. J. Eq. 422-425, and the second in process, the identity of the defendant being Davis v. Champion Fiber Co. 150 N. C. in all cases a matter of which the officer 87, 63 S. E. 178, 180, erroneously printed must assure himself under liability to a in this last citation as Lord Erskine. But, penalty. If there is a mistake as to idenwhile this ruling may be upheld in pro- tity of the defendant, he can avail himself ceedings of that character, the exigency of of it equally whether the sheriff is imme. the case at times requiring the recognition diately present or is blind, or speaks over of such a principle, it should not be allowed the phone. In the Trojan War, Stentor to prevail in reference to the service of made his summons to surrender to the original process where, as in this case, the enemy on the walls of Troy at a good disstatute, as heretofore stated, at the time tance, out of the reach of arrows, and the it was enacted, contemplated and provided service was sufficient. In fact in former for a service by reading the writ in the days the heralds of opposing armies served personal presence of the party, and involv- their summons at a good distance by truming, too, the necessary exhibition of the pet. process to the litigant. On the facts in There is no statute, and no decision, that evidence, we are of opinion and so hold requires that the defendant shall see the that there has been no valid service of paper or read it himself, or that he shall process shown, and this will be certified know the identity of the oflicer. The court that the judgment of the justice court be knows its own officers, and the defendant set aside and defendant allowed to answer. takes the risk if he does not recognize Reversed.

the officer's authority. The officer takes

the risk under his oath, and under a per Clark, Ch. J., (dissenting):

alty, if he mistakes the identity of the deRevisal 439 provides that the summons fedant. Whether the service is on shall be served by the officer “reading the fendant who was personally present or who same to the defendant, and such reading is at the end of a phone, these principles shall be a legal and sufficient service.” All apply. this has been done in this case. Unless the In this day there is an urgent demand court shall legislate by putting into the that courts shall reduce the time and ex. statute what the legislature has not yet pense of proceedings. Why should an offithought proper to put therein, this is "a cer ride all night over bad roads and in legal and sufficient service.”

The bad weather, at great expense, to read a mons, it is found as a fact, was read by summons a subpæna to a party who the sheriff to this defendant, and indeed j is needed in court next morning, when he there is no question as to that fact, or as can read the paper as intelligently to the to his being sheriff, or as to the identity 'party over the phone and with as much

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certainty of his identity as if he went to his hearing, it is not denied this surely the locality and hunted him up. Indeed would be sufficient. The invention of the when the service is made by phone the phone has merely extended the range of the officer will take even greater precautions, voice of the officer and of the hearing of because he cannot reach the party in that the defendant. way unless he is brought to the phone, The statute does not require that the at his request by some agent of the sheriff, officer should return that he “saw the deor voluntarily remains at the phone till fendant and read the summons to him.” the reading is completed.

But it only requires “reading the same to It is suggested that "service by phone is defendant, and such reading shall be a not safe,” millions of dollars in contracts legal and sufficient service.” For the court are made every day over the phone, often to add the requirement that the officer "saw at a long distance, between parties who do the defendant” is legislation by the court, not see each other, but who are satisfied and will make a very considerable addition of each other's identity, by taking proper of trouble and expense to the officers, which precautions. The great transportation the legislature has not placed upon them. systems of the country find it safe to use Whether the officer sees, or does not see, the telephone in controlling the move- the defendant, it is a defense that he was ments of trains on which depend the safety not an officer, or that there was a mistake of thousands of lives and millions of of identity as to the defendant, or that property daily. Great armies on whose the summons was not read to him. These movements depend the destiny of nations defenses are in no wise affected by the cirand the lives of thousands of men cumstance that the summons was read over risked, every day, on the use of the tele- the phone, or at a distance, or to one in phone. Over the phone doctors give pre- another room. The statute does not rescriptions on which the lives of patients quire the immediate presence of the dedepend, and lawyers give advice on which fendant. rest the disposal of transfer of property. A captive with the Indians who received Yet we are asked to say that it is unsafe a letter told the chief its contents and from for this officer to notify this defendant to whom it came. The chieftain took the letappear before a magistrate in a small ac- ter. He looked at it and saw nothing on tion involving a few dollars, when it is ; it to that purport. He put it to his ears found as a fact that this defendant was and heard nothing. He smelled of it and the proper party, that the officer was duly perceived nothing. He said that his capauthorized, and that he fully read this tive was either a liar or a witch, and in summons to this defendant as required by either event he ought to be burned, and the statute.

burned he was. The chief knew no other Why should the courts alone be deprived means of communication. of the advantage of modern improvements, When the invention of the telescope and retain every antiquated method as to vastly extended human vision, Galileo, service or as to pleadings, on the plea that gauging the starry depths, announced that it was “thus done under the Saxon hep- the world revolved around the sun, and not tarchy?” It is a great saving of useless ex- the sun around the world. The ignorant pense and of time to use this method of priests condemned him to be burned, and summoning jurors and witnesses and par- he only escaped by taking it back. ties over the phone, of which bank officials, The most ignorant man in North Carobusiness men, railroad officers, and every-lina now knows that by the invention of body else avail themselves. Indeed there is the telephone the range of the human voice less risk of imposition as to identity in and of human hearing has been lengthened. the service of a summons or subpæna than When this summons was read to the dein any of the other businesses of life, for fendant by the officer over the phone (all the reason that the officer, being under a of which are found as facts), it was the penalty for making an erroneous return, officer's voice, and not a substitute-as in will take extra care in that regard. Be- the case of a telegram or letter—which the sides the party who is served can rarely, defendant heard, and the officer truly reif ever, have any motive to assume to be ported, as is found, that he had “read” the the defendant when he is not. Moreover, summons to him. The statute requires he waives any other service, as this defend nothing more, and there is no reason that ant did, by remaining at the phone until it should. A few years ago it might have the entire summons is read to him.

been asserted that thus reading a summons If an officer should read a summons to to a man 7 miles off was a physical ima man on the other side of a screen, or of possibility, and therefore on its face una curtain, or in another room, and his iden- | true. But modern invention has made it tity is certain, as found in this case, and an ordinary occurrence. A conversation

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