276 U.S. 13 (1928), 142, Wuchter v. Pizzutti,

Docket Nº:No. 142
Citation:276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446
Party Name:Wuchter v. Pizzutti,
Case Date:February 20, 1928
Court:United States Supreme Court

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276 U.S. 13 (1928)

48 S.Ct. 259, 72 L.Ed. 446




No. 142

United States Supreme Court

February 20, 1928

Argued January 5, 1928




1. A state statute which provides that, in actions by residents of the state against nonresidents for personal injuries resulting from the operation by the latter of their motor vehicles on the state highway, service of summons may be made on the Secretary of state, as their agent, and which contains no further provision making it reasonably probable that notice of such service will be communicated to the defendants, is lacking in due process of law. Pub.Ls. N.J. 1924, c. 232, § 1. P. 18.

2. Such actions cannot be sustained by serving notice outside of the state not required by the statute. P. 24.

103 N.J.L. 130 reversed.

Error to a judgment of the Court of Errors and Appeals of the State of New Jersey, which affirmed a judgment recovered by Pizzutti in an action against Wuchter for personal injuries and damages to property, caused by Wuchter's operation of an automobile.

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TAFT, J., lead opinion

MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

This case involves the validity, under the Fourteenth Amendment, of a statute of New Jersey providing for service of process on nonresidents of the state in suits for injury by the negligent operation of automobiles on its highways.

Pizzutti was driving a team of horses attached to a wagon on a public highway in New Jersey. Wuchter was a resident of Pennsylvania, who was following the wagon with his automobile. Wuchter drove his car so as to crash into the rear of the wagon, damaging it and injuring Pizzutti and his horses. Pizzutti instituted a suit against Wuchter in the Supreme Court of New Jersey. Wuchter was served with process under the provisions of the act known as Chapter 232 of the Laws of 1924 (P.L.1924, p. 517), by leaving process with the Secretary of State. Wuchter interposed no defense. A judgment interlocutory was taken against him, and a writ of inquiry of damages was issued. Although the statute did not

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require it, notice of its proposed execution was actually served personally on Wuchter in Pennsylvania. Wuchter did not appear. A final judgment was entered. Wuchter then appealed to the Supreme Court, contending that the act under which the process was served upon him was unconstitutional, because it deprived him of his property without due process of law, in contravention of § 1 of the Fourteenth Amendment to the federal Constitution.

Section 1 of the Act complained of, under which the process was served in this case, was as follows:

From and after the passage of this act, any chauffeur, operator or owner of any motor vehicle, not licensed under the laws of the State of New Jersey, providing for the registration and licensing of motor vehicles, who shall accept the privilege extended to nonresident chauffeurs, operators, and owners by law of driving such a motor vehicle or of having the same driven or operated in the State of New Jersey, without a New Jersey registration or license, shall, by such acceptance and the operation of such automobile within the State of New Jersey, make and constitute the Secretary of State of the State of New Jersey, his, her or their agent for the acceptance of process in any civil suit or proceeding by any resident of the State of New Jersey against such chauffeur, operator or the owner of such motor vehicle, arising out of or by reason of any accident or collision occurring within the state in which a motor vehicle operated by such chauffeur, or operator, or such motor vehicle is involved.

This is the first section of an act entitled.

An act providing for the service of process in the civil suits upon nonresident chauffeurs, operators, or nonresident owners whose motor vehicles are operated within the State of New [48 S.Ct. 260] Jersey, without being licensed under the provisions of the laws of the State of New Jersey, providing for the registration and licensing of drivers and operators and

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of motor vehicles, requiring the execution by them of a power of attorney to the Secretary of State of the State of New Jersey to accept civil process for them under certain conditions.

The second section provides that, where the car is unlicensed and there is an accident, the magistrate before whom the nonresident owner of such motor vehicle or its operator shall be brought shall require the nonresident, as a condition to his release on bail or otherwise, to execute a written power of attorney to the Secretary of State appointing such officer his lawful attorney for the acceptance of service in any civil suit instituted or to be instituted by any resident of the State of New Jersey against the nonresident for or on account of any claim arising out of the collision or accident.

Section 3 provides that it shall be lawful to serve civil process upon a nonresident owner in such case upon any chauffeur or operator of the vehicle while the vehicle is being operated within the state by such chauffeur or operator, and that such service may be lawfully served upon any nonresident owner by serving the process upon any person over the age of 14 years who has custody of the automobile, whether held by him as security or driven, provided, however, that a copy of such civil process also shall be posted in a conspicuous place upon such automobile. The only provision for other than service on the persons in charge of the car is by leaving the summons with the Secretary of State without more, under § 1 of the act already quoted.

By the general state motor law, as amended by chapter 211, Laws of 1924, provision is made for the registration and license of automobiles owned by nonresidents who use the highways of the state (P.L.1924, § 9, par. 4, p. 451). They are required to agree that original process against the owner made by leaving it in the office of the Secretary of State shall have the same effect as if served on the owner within the state, and the statute

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provides that the commissioner of motor vehicles shall notify the owner of such motor car by letter directed to him at the post office address stated in his application for registration and license already filed with the commissioner.

The act first above referred to, No. 232, under which process in this case was served, applies to the owners of automobiles who are not licensed, but who come into the state and use the highways of the state without registration, and is not to be confused with the license act or its provisions.

It is settled by our decisions that a state's power to regulate the use of its highways extends to their use by nonresidents as well as by residents. Hendrick v. Maryland, 235 U.S. 610, 622. We have further held that, in advance of the operation of a motor vehicle on its highways by a nonresident, a state may require him to take out a license and to appoint one of its officials as his agent, on whom process may be served in suits growing out of accidents in such operation. This was under the license act or New Jersey, last above referred to, and not No. 232. Kane v. New Jersey, 242 U.S. 160, 167. We have also recognized it to be a valid exercise of power by a state, because of its right to regulate the use of its highways by nonresidents, to declare, without exacting a license, that the use of the highway by the nonresident may be statute be treated as the equivalent of the appointment by him of a state official as agent on whom process in such a case may be served. Hess v. Pawloski, 274 U.S. 352.

The question made in the present case is whether a statute making the Secretary of State the person to receive the process must, in order to be valid, contain a provision making it reasonably probable that notice of the service on the secretary will be communicated to the nonresident defendant who is sued. Chapter 232 of the Laws of 1924 makes no such requirement, and we

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have not been shown any provision in any applicable law of the State of New Jersey requiring such communication. We think that a law with the effect of this one should make a reasonable provision for such probable communication. We quite agree, and, indeed, have so held in the Pawloski case, that the act of a nonresident in using the highways of another state may be properly declared to be an agreement to accept service of summons in a suit growing out of the use of the highway by the owner of the automobile, but the enforced acceptance of the service of process on a state officer by the defendant would not be fair or due process unless such officer or the plaintiff is required to mail the notice to the defendant, or to advise him, by some written communication, so as to make it reasonably probable that he will receive actual notice. Otherwise, where the service of summons is limited to a service of the Secretary of State or some officer of the state, without more, it will be entirely possible for a person injured to sue any nonresident he chooses, and, through service upon the state official, obtain a default judgment against a nonresident who has never been in the state, who had nothing to do with the accident, or whose automobile having been in the state has never injured anybody. A provision of law for service that leaves open such a clear opportunity for the commission of fraud (Heinemann v. Pier, 110 Wis. 185) or injustice is not a reasonable provision, and, in the case supposed, [48 S.Ct. 261] would certainly be depriving a defendant of his property without due process of law. The Massachusetts statute considered in Hess v. Pawloski really made necessary actual personal service to be evidenced by the written admission of the defendant. In Kane v. New Jersey, the service provided for by statute was by mail to the necessarily known registered address of the...

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