Carlin v. Schuler

• Decision Date: 29 November 1965
• Docket Number: No. L--10178,L--10178
• Citation: 89 N.J.Super. 366,215 A.2d 56
• Parties: George CARLIN, Plaintiff, v. Joseph SCHULER, Jr., Defendant.
• Court: New Jersey Superior Court

Page 366

89 N.J.Super. 366

215 A.2d 56

George CARLIN, Plaintiff, v. Joseph SCHULER, Jr., Defendant.

No. L--10178.

Superior Court of New Jersey Law Division.

Decided Nov. 29, 1965.

Thomas F. Shebell, Jr., Asbury Park, for plaintiff.

Stephen C. Carton, Asbury Park, for defendant (Carton, Nary, Witt & Arvanitis, Asbury Park, attorneys).

SIMMILL, J.S.C.

Defendant Joseph Schuler, Jr. was a resident of Asbury Park, New Jersey, until April 1952, at which time he became a member of the armed forces of the United States. Since that time he has not been stationed in New Jersey or otherwise resided in New Jersey. On July 5, 1953 he was on leave visiting his parents, with whom he had lived prior to entering the armed forces. While on such leave he allegedly threw a firecracker in the direction of plaintiff and the explosion thereof caused plaintiff personal injury, including the loss of an eye. Summons was issued on August 29, 1953, since which date numerous attempts have been made to effect service. Among such attempts was service upon his father, who moved to strike the complaint because of insufficient service. The court entered an order setting aside the service but permitted the complaint to remain on file. Thereafter service was made upon the father on two subsequent occasions, and in each case the service was, on motion, set aside but the complaint permitted to remain on file. When defendant's original tour of duty ended he re-enlisted and has evidently made the armed forces his career. He is presently in the military service.

Numerous motions were made to dismiss the case for lack of prosecution, all of which were denied by reason of defendant's military service. The Supreme Court then adopted R.R. 4:4--4(j), and pursuant to that rule plaintiff attempted to serve defendant in Biloxi, Mississippi, that address having been given to plaintiff's attorney in an affidavit filed by the defendant on May 3, 1965. Plaintiff's attorney took an affidavit that after diligent inquiry and after defendant could not be served under any of the paragraphs of R.R. 4:4--4 preceding subparagraph (j), he mailed registered mail, return receipt requested, a copy of the summons and complaint to defendant, addressed to the Biloxi address set forth in said affidavit made by defendant. The registered letter was forwarded by the Biloxi postoffice to somewhere in the State of Vermont, where it was received by defendant's wife. Defendant now moves to set aside the service of process on several grounds: that he was not a resident of Biloxi, Mississippi; that he is not a resident of the State of Vermont, and that he is presently residing in the State of Maine. The affidavit was taken in the State of Maine, County of Aroostook.

Defendant also contends that R.R. 4:4--4(j) is inapplicable to the present case because the rule extends only to nonresident defendants residing in the State of New Jersey at the time of the alleged tort. He also contends that the service is a nullity for want of compliance with 'due process of law,' as set forth in the rule. The gravamen of this argument is that defendant did not have the requisite minimal contacts with New Jersey so as to be subjected to In personam jurisdiction in this State.

R.R. 4:4--4, relating to service, was enlarged in January 1964 by the adoption of subparagraph (j). This rule provides:

'(j) Whenever it shall appear by affidavit of the attorney for the plaintiff or of any person having knowledge of the facts, that, after diligent inquiry and effort, an individual cannot be served in this State under any of the preceding paragraphs of this rule, then, consistent with due process of law, service may be made by mailing, registered mail, return receipt requested, a copy of the summons and complaint to the individual addressed to his dwelling house or usual place of abode. * * *'

This provision was added 'to protect New Jersey residents from a cause of action arising out of acts done here when the defendant has left the state.' Report of the New Jersey Supreme Court's Committee on Rules, April 4, 1963, p. 5. The reach of the rule must be measured by the phrase 'consistent with due process of law.' By court rule rather than statute this State would acquire 'every variety of In personam authority over non-resident individuals which the United States Supreme Court will not reject as an excess of constitutional due process.' Schnitzer and Wildstein, New Jersey Rules Service, Special Release No. 4, 1963, p. 19.

Defendant contends that the rule will reach only persons resident in New Jersey at the time of the act. For this principle he relies primarily on the recent case of DeFazio v. Wright, 229 F.Supp. 111 (D.N.J.1964). The court there recognized that no judicial decision interpretive of R.R. 4:4--4(j) was available, but nevertheless proceeded to evaluate the term 'consistent with due process of law.' In DeFazio defendants allegedly negligently used and operated a motor boat on the waters of a New Jersey lake, thereby causing injury to plaintiff. From a date two months before the alleged tort to a period some two years later defendants were Bona fide residents of New Jersey. The defendants then moved to Pennsylvania and service was attempted there pursuant to the aforesaid rule. The United States District Court upheld the service, declaring that defendants had sufficient contacts in New Jersey for our courts to assert personal jurisdiction, stating:

'Having enjoyed the benefits of residence here, including the use of the State's recreational facilities, it is fair and just to make them subject to the jurisdiction of this state's courts in connection with any claim which arose out of their enjoyment of those benefits.'

Defendants' long residence in New Jersey and their enjoyment of the State's facilities were thus viewed as a factor in determining the minimal contacts. However, it was not necessary for the court to reach the question of minimal contacts, absent such residence at the time of the tort.

In Wangler v. Harvey, 41 N.J. 277, 196 A.2d 513 (1963), Justice Francis in his dissenting opinion had occasion to touch upon the problem at hand in reference to R.R. 4:4--4(h), a rule designed to subject a nonresident engaged in business in this State to conventional personal service in suits or causes of action arising here. He stated:

'There is no real indication that the purpose of this rule was to authorize substituted service of process in the home state of a nonresident in a cause of action arising from an isolated tort committed in New Jersey. In some jurisdictions such service may be made (and its constitutionality has been sustained) on a nonresident who has caused an event to occur in the state out of which the claim arose.' (at p. 292, 196 A.2d at p. 521.)

Indeed, the footnote on page 292 on page 521 of 196 A.2d indicates that this very extension of In personam jurisdiction is covered by subsection (j), which was intended to rectify the deficiency. However, it had not at that time become effective. If R.R. 4:4--4(h) directs itself to nonresident businessmen engaged in business in New Jersey, then R.R. 4:4--4(j) must necessarily apply to nonresident defendants engaged in activities in this State. Otherwise residence at the time of the tort would limit R.R. 4:4--4(j) to a few isolated situations primarily involving absconding defendants. Consequently, residence should be viewed as only one factor in determining minimal contacts. Absent such residence the more difficult question is whether the commission of a tort in this State, without more, is a sufficient minimal contact.

The Supreme Court of the United States has not yet answered the question whether a single occurrence of liability within the State should afford an appropriate basis for judicial review, assuming the meeting of all other requisites, such as service of process. Goodrich, Conflict of Laws ...