Request By:
Mr. Ken Silvers, President
Teamsters, Local Union 651
1039 Goodwin Drive
Lexington, Kentucky 40505
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert W. Hensley, Assistant Attorney General
This is in response to your letter to this office in which you ask whether a company is required by law to admit a constable or deputy sheriff into their plant or shop for the purpose of serving a summons on an employee. You also ask if the law officer can go to the assembly line and make service on the employee if the summons is in connection with a civil action or divorce action.
Before answering your questions, we would first like to direct your attention to the relevant Rules of Civil Procedure (CR). It is provided in CR 3 that: "A civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith." And CR 4.04 provides as follows:
(1) The summons and complaint (or other initiating document) shall be served together. The initiating party shall furnish the person making service with such copies as may be necessary.
(2) Service shall be made upon an individual within this Commonwealth, other than an unmarried infant or person of unsound mind, by delivering a copy of the summons and of the complaint (or other initiating document) to him personally or, if acceptance is refused by offering personal delivery to such person, or by delivering a copy of the summons and of the complaint (or other initiating document) to an agent authorized by appointment or by law to receive service of process for such individual.
(3) Service shall be made upon an unmarried infant or a person of unsound mind by serving his resident guardian or committee if there is one known to the plaintiff or, if none, by serving either his father or mother within this state or, if none, by serving the person within this state having control of such individual. If there are no such persons enumerated above, the clerk shall appoint a practicing attorney as guardian ad litem who shall be served. If any of the persons directed by this section to be served is a plaintiff, the person who stands first in the order named who is not a plaintiff shall be served.
(4) Service shall be made upon a partnership or unincorporated association subject to suit under a common name by serving a partner or managing agent of the partnership or an officer or managing agent of the association, or an agent authorized by appointment or by law to receive service on its behalf.
(5) Service shall be made upon a corporation by serving an officer or managing agent thereof, or the chief agent in the country wherein the action is brought, or any other agent authorized by appointment or by law to receive service on its behalf.
(6) Service shall be made upon the Commonwealth or any agency thereof by serving the Attorney-General or any assistant attorney-general.
(7) Service shall be made upon a county by serving the county judge or, if he is absent from the county, the county attorney. Service shall be made upon a city by serving the chief executive officer thereof or an official attorney thereof. Service on any public board or other such body, except state agencies, shall be made by serving a member thereof.
(8) Service may be made upon an individual out of this state, other than an unmarried infant, a person of unsound mind or a prisoner, by personal delivery of a copy of the summons and of the complaint (or other initiating document) by a person over 18 years of age. Proof of service shall be made either by the return receipt mentioned in Rule 4.01 (1) or by affidavit of the person making such service, upon or appended to the summons, stating the time and place of service and the fact that the individual served was personally known to him. Such service without an appearance shall not authorize a personal judgment, but for all other purposes the individual summoned shall be before the court as in other cases of personal service.
(9) Service may be made upon a nonresident who transacts business through an office or agency in this state, or a resident individual who transacts business through an office or agency in any action growing out of or connected with the business of such office or agency, by serving the person in charge thereof. (Amended effective July 1, 1975; amended October 14, 1977, effective January 1, 1978.)
Before continuing we would direct your attention to CR (4), (5) and (9), providing for service upon a business or nonresident who transacts business in the state. We presume your letter does not deal with such service, but we wish to make this clear before continuing.
As you can see, CR 4.04 does not address the questions you pose. As we mulled over your letter, we began to think in terms of the rights of independent third persons who have no connection with the controversy which initiated the filing of the complaint and the good faith issuance of the summons thereon. As we understand your letter, you are asking about the rights of an employer whose only connection with the defendant is that he or she happens to be an employee of the employer, performing the duties which his or her employment calls for when the official arrives to serve the civil process.
In Breitenbach v. Trowbridge, Mich., 31 N.W. 402 (1887) it is stated on p. 403:
A person has the right, in his private business, to control it, and may select such persons as he chooses with whom to transact such business. He can prevent whom he pleases from entering his office. And when a person under the implied license, has entered, he has a right to request such person to depart, who thereafter has no legal right to remain. A person in such business has the choosing of his customers; and his private office or business place, though open to the public for the transaction of his business with them cannot be made, against his will, free to all to enter and remain upon proper business, like a hotel, public office, railroad car, or depot. He can admit or reject whom he pleases. It is his own business, and the public have no rights therein against his wishes. Woodman v. Howell, 45 Ill. 367-370; Bogert v. Haight, 30 Barb. 251.
In Bradford v. Clifton, Ky. 379 S.W. 249 (1964) it is stated at p. 250: "A trespasser is a person who enters or remains upon land in the possession of another without the possessor's consent." In 75 Am. Jur. 2d Process § 14 (1974) it is stated:
To enter a building without license to do so is a trespass. This is true whether the structure in question is a dwelling or a building used for business purposes or as a workshop or factory. The fact that a professional man, merchant, or other person opens an office to transact business with an for the public is a tacit invitation to all persons having business with him, and a permission for such persons to enter, unless forbidden. Nevertheless, a person has the right, in his private business, to control it and may select such persons as he chooses with whom to transact such business.
Thus to answer your first question, we had to determine whether the law bestowed upon the civil process server any authority to enter the premises of a third person in order to serve civil process upon someone in the employment of the third person.
When we started our research on this problem, we presumed that there would be many cases discussing it. Much to our surprise we found none. We were unable to find a discussion of the problem in either: American Jurisprudence, Second Edition (1972); the American Law Reports (incorporating the ALR 2d Digest (1967) as our source reference into this three series system); Corpus Juris Secundum (1951) or the Kentucky Digest (1958). Furthermore, we were unable to find a discussion of the problem in "LEXIS," our computer, nor could we find any former opinions from our office since the effective date of the Rules of Civil Procedure (July 1, 1953). The Legislative Research Commission (L.R.C.) was unable to find any Kentucky statutes on their computer on the subject. In fact, we have only found two legal citations which indicated a possible discussion of the problem. These came from 1 MERRILL ON NOTICE § 607, p. 671, f.n. 88 (1952). The two cases were Rice v. Churchill, 2 Denio 145 (New York, 1846) and Dunn v. Marston, 34 Me. 379 (Maine, 1852). Regrettably, however, neither contained a discussion of the problem.
We therefore reach the conclusion that a company is not required by law to admit into their plant or shop a constable, deputy sheriff or any official qualified under the law to serve civil process for the purpose of serving civil process on an employee, and furthermore, if such official stays after a request to leave, he or she could be trespassing.
Since we have reached the conclusion stated above, we are also of the opinion that it makes no difference if the summons is in connection with a civil or divorce action.
We would also point out that by a 1978 amendment to CR 4.01 it is now possible to serve persons by mail. This amendment would alleviate the problem of service on someone while he or she is working at their place of employment (presuming again that we are not talking about a situation where CR 4.04 (4), (5) or (9) would be applicable.) CR 4.01 now provides:
(1) Upon the filing of the complaint (or other initiating document), the clerk shall forthwith issue the required summons and, at the direction of the initiating party, either:
(a) Place a copy of the summons and complaint (or other initiating document) to be served in an envelope, address the envelope to the person to be served at the address set forth in the caption or at the address set forth in written instructions furnished by the initiating party, affix adequate postage, and place the sealed envelope in the United States mail as certified mail return receipt requested with instructions to the delivering postal employee to deliver to the addressee only and show the address where delivered and the date of delivery. The clerk shall forthwith enter the fact of mailing on the docket and make a similar entry when the return receipt is received by him. If the envelope is returned with an endorsement showing failure of delivery, the clerk shall enter that fact on the docket. The clerk shall file the return receipt or returned envelope in the record. Service by certified mail is complete only upon delivery of the envelope. The return receipt shall be proof of the time, place and manner of service. To the extent that the United States postal regulations permit authorized representatives of local, state, or federal governmental offices to accept and sign for "addressee only" mail, signature by such authorized representative shall constitute service on the officer. All postage shall be advanced by the initiating party and be recoverable as costs: or
(b) Cause the summons and complaint (or other initiating document), with necessary copies, to be transferred for service to any person authorized, other than by paragraph (1) of this Rule, to deliver them, who shall serve the summons and accompanying documents, and his return endorsed thereon shall be proof of the time and manner of service.
(2) A summons may be issued for service in any county, against any person to be served, and separate or additional summons may be issued against any person to be served at the request of the initiating party. (Amended October 14, 1977, effective January 1, 1978; amended May 4, 1978, effective June 1, 1978.)