(dissenting).
If Title 7, Section 34, 1940 Code of Alabama were construed and applied literally, this action would not be barred by the one-year statute of limitations for personal injury actions prescribed by Title 7, Section 26. The early Alabama cases applied the statute exactly as written. For example, in Wright v. Strauss, Inc., 73 Ala. 227, it was said:
“The saving of the statute is confined in its terms to the personal absence from the State of the party sued or liable to suit. Code of 1876, § 3234. In this respect it differs from the statutes of some of the other States, the savings of which do not extend to parties absent, yet having property within the State. The existence of property in the State, which may be reached by attachment, or by other extraordinary process, or the existence of statutes authorizing the commencement of suit by constructive notice, cannot enlarge the statutory exception. The savings or exceptions of the statute cannot be enlarged or narrowed by implication or intendment. Harwell v. Steel, 17 Ala. 372. Nonresidents of the State have been subject to suit in equity by publication for a long period. It has never been supposed that when sued, they would invoke the bar of the statute of limitations, as if they were and had been resident citizens of the State, claiming exemption from the saving of the statute because of residence without the State.”
To like effect is Wright v. Preston, 55 Ala. 570, 576, and Willis v. Rice, Ala., 1905, 39 So. 991.
A different result in the present case is not required by the late decision of Peters v. Tuell Dairy Co., et al., 1948, 250 Ala. 600, 35 So.2d 344. In that case service was had under Title 7, Section 199, which provides for service on a nonresident operator or owner of a motor vehicle in an action growing out of its operation on the public highways of this State. There the defendant’s absence from the State did not substantially impede or render more difficult the service *179of process. The Supreme Court of Alabama said:
“It is obvious that at all times from the date of the accident service could be secured on the defendants under the provisions of § 199, Title 7, Code of 1940. See Ray v. Richardson, Ala.Sup., [250 Ala. 705] 36 So. 2d 89; Wuchter v. Pizzutti, 276 U. S. 13, 48 S.Ct. 259, 73 [72] L.Ed. 446, 57 A.L.R. 1230. Accordingly nonresidence of the defendants in no way prevented suit against or service upon them. So the reason which lies back of § 34, Title 7, Code of 1940, does not here apply. This statute is designed to protect the plaintiff in those cases where it is not practicable for him to enforce his' rights because of the absence of the defendant from the state.” (Emphasis supplied.) (35 So.2d at 345.)
Later in the opinion the Court said:
“It is a sound rule of statutory construction that a statute is to be taken in reference to its subject matter and the object to be accomplished by the act in its relation to other statutes.” (35 So.2d at 345.)
Under the facts of the present case, the absence of the appellee from the State of Alabama probably did impede and render more difficult the service of process. In determining whether Title 7, Section 34 of the 1940 Code of Alabama has any field of operation, it seems to me that the Supreme Court of Alabama has left open a realistic test which would carry out the purpose of the statute; viz., that the defendant’s absence from the State tolls the running of the statute of limitations unless the defendant is as clearly subject to constructive service as it would have been to direct service if it had been present in the State. Otherwise stated, to render the statute inapplicable, it must appear that the defendant’s absence from the State did not aid it to escape service of process. Compare Denver-Chicago Trucking Co. v. Lindeman, N.D.Iowa, 1947, 73 F.Supp. 925, 931. If that test were applied in this case, it seems to me that the plaintiff’s action would not be barred by the one-year statute of limitations. I therefore respectfully dissent.