Day v. J. Brendan Wynne, D.O., Inc., 82-1674

• Decision Date: 08 March 1983
• Docket Number: No. 82-1674,82-1674
• Citation: 702 F.2d 10
• Parties: Marilyn DAY, Plaintiff, Appellee, v. J. BRENDAN WYNNE, D.O., INC., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 10

702 F.2d 10

Marilyn DAY, Plaintiff, Appellee, v. J. BRENDAN WYNNE, D.O., INC., Defendant, Appellant.

No. 82-1674.

United States Court of Appeals First Circuit.

Argued Jan. 31, 1983.

Decided March 8, 1983.

Robert J. Quigley, Jr., Providence, R.I., with whom Higgins, Cavanagh & Cooney, Providence, R.I., was on brief, for defendant, appellant.

Guy J. Wells, Providence, R.I., with whom Gunning, LaFazia & Gnys, Inc., Providence, R.I., was on brief, for plaintiff, appellee.

Before ALDRICH, BOWNES and BREYER, Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

On July 25, 1974 plaintiff Marilyn Day sustained a broken leg as a result of an accident while a guest in an automobile driven by one Finck in the state of Rhode Island. She was treated by Dr. J. Brendan Wynne, an employee and officer of J. Brendan Wynne, D.O., Inc., a Rhode Island professional corporation. It was a difficult break, an oblique fracture with angulation, and Dr. Wynne advised plaintiff as to two methods of repair. She chose a closed reduction procedure that would result in no scarring, requiring contact to be maintained with a long leg cast while knitting. The procedure did not turn out well. The end result was a bowing of the leg, and a one inch shortening.

Plaintiff sued Finck in the Rhode Island state court. She testified in the present case that she was living in California and that her attorney advised her that $25,000 was the maximum available under Finck's insurance policy. On May 24, 1979 she gave Finck a general release in return for $22,000, discharging "said payor ... from all claims and demands arising out of ... an accident which happened on or about the 26th day of July 1974."

Meanwhile, in July, 1978 plaintiff sued defendant J. Brendan Wynne, D.O., Inc. for malpractice in the United States District Court for the District of Rhode Island. By that time Dr. Wynne had taken employment at the Philadelphia College of Osteopathic Medicine. Pursuant to an order of court on July 25, 1978, counsel made service of process on the corporation by certified mail, return receipt requested, addressed to J. Brendan Wynne, D.O., at the College. An affidavit of compliance was filed, but counsel neglected to file with the court the return receipt card. Counsel did receive such a card; however, the signature was difficult to read and did not appear to be that of Dr. Wynne. Defendant having filed no response to the complaint, plaintiff filed an affidavit of failure to plead and application for entry of default on May 26, 1981, together with the return receipt card. Default was entered and a copy mailed to Dr. Wynne. Defendant then filed a motion to set aside the default, asserting that process had never been received. When this motion was granted, defendant moved to dismiss the action for lack of service. That motion was denied.

On this appeal defendant presses the motion to dismiss, asserts error in the court's refusal to direct a verdict in its favor on the basis of the release, and makes various other complaints. We affirm.

While it is oversimplistic to state that the purpose of process is simply to notify the defendant of the commencement of the action, notice, constitutionally, is the primary purpose. Mullane v. Central Hanover Bank & Trust Co., 1950, 339 U.S. 306, 314-15, 70 S.Ct. 652, 657-58, 94 L.Ed. 865; Milliken v. Meyer, 1940, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278. Indeed, as the Court indicated in these opinions, due process requires only a procedure that is reasonably calculated to achieve notice, and, if such is adopted, successful achievement is not necessary. Thus, where a foreign defendant who was doing business within the state was sent process by registered mail, return receipt requested (and received back), but who denied actual receipt of the letter, due process was held satisfied. See Jardine, Gill & Duffus, Inc. v. M/V CASSIOPEIA, D.Md., 1981, 523 F.Supp. 1076. It may well be that that case is correct, but certainly there could be no constitutional question here when, after actual notice, the court leaned over backwards by permitting defendant to remove the default. Cf. York v. Texas, 1890, 137 U.S. 15, 11 S.Ct. 9, 34 L.Ed. 604. No real claim was made that the order itself was not complied with, and thus, in the absence of any constitutional problem, the motion to dismiss was properly denied.

With respect to the release, defendant correctly contends that Finck's liability, if any, for the initial accident would extend, through ordinary principles of proximate cause, to include the negligence of the treating physician. See Roberts v. Kettelle, R.I., 1976, 116 R.I. 283, 356 A.2d 207, 215; Selby v. Kuhns, 1963, 345 Mass. 600, 602, 188 N.E.2d 861. Such liability, so far as Finck was concerned, was necessarily covered by the release. Whether defendant's liability therefore was also included is a different matter. The issue has never been squarely passed upon by the Rhode Island courts. The older general view, giving comprehensive consequence to a general release, would regard the doctor as a beneficiary. More recent cases hold otherwise. E.g., Selby v. Kuhns, ante; Smith v. Conn, Iowa, 1968, 163 N.W.2d 407. Defendant offers no...