140 A. 587 (N.H. 1928), Poti v. New England Road Machinery Co.

Citation:140 A. 587, 83 N.H. 232
Opinion Judge:ALLEN
Party Name:Sofia Poti v. New England Road Machinery Company
Attorney:Francis W. Johnston, for the plaintiff. Roy M. Pickard, for the defendant.
Case Date:February 07, 1928
Court:Supreme Court of New Hampshire
 
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Page 587

140 A. 587 (N.H. 1928)

83 N.H. 232

Sofia Poti

v.

New England Road Machinery Company

Supreme Court of New Hampshire

February 7, 1928

Exceptions overruled.

All concurred.

Francis W. Johnston, for the plaintiff.

Roy M. Pickard, for the defendant.

OPINION

ALLEN

Page 588

The law under which service was made provides in substance that a non-resident's operation of a motor vehicle on any highway within the state shall be deemed equivalent to the appointment of the commissioner of motor vehicles as his agent upon whom may be served process in any action arising out of any accident in which he may be involved while thus operating his motor vehicle, and that such operation signifies his agreement that such process so served shall amount to personal service on him within the state provided the commissioner mails him notice of it.

[83 N.H. 233] The law is practically identical with one in Massachusetts, which has been held constitutional both in that state and by the United States supreme court. Pawloski v. Hess, 250 Mass. 22; s. c., 253 Mass. 478; s. c., 274 U.S. 352. No point is made that any constitutional question in any particular not considered in that case is here raised, and its authority is affirmed.

The suggestion that the law requires the acceptance of an impossible condition as an actual one, because the non-resident's appointment of the commissioner as his agent is contrary to the fact, and that the law thus creates a relation when none exists, fails to recognize the voluntary entrance of the non-resident on our highways as his act accepting its legal consequences, whatever they may be. The statute does not declare the commissioner's authority as given in terms by the non-resident but describes the appointment as the equivalent in significance of express authority from the non-resident. It is made a condition of a non-resident's use of our highways with a motor vehicle that he may not be heard to deny the commissioner's authority, and the statute creates no relation contrary to the fact but merely bars disproof of it.

In a broader way, the constitutional issue being met, any methods of service prescribed by the legislature are valid, and do not depend upon the defendant's consent to it whether he be resident or non-resident. And the phraseology of the legislation in describing the commissioner as the defendant's agent is not of importance.

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