O'Donnell v. Registrar of Motor Vehicles

• Decision Date: 29 June 1933
• Citation: 283 Mass. 375,186 N.E. 657
• Parties: O'DONNELL v. REGISTRAR OF MOTOR VEHICLES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 375

186 N.E. 657

O'DONNELL

v.REGISTRAR OF MOTOR VEHICLES.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1933.

Exceptions from Supreme Judicial Court, Suffolk County.

Petition by Mary F. O'Donnell for a writ of mandamus to be directed to the Registrar of Motor Vehicles. Writ was directed to issue, and defendant brings exceptions.

Exceptions sustained.

Harold J. Smith and Joseph H. Samuel, both of Boston, for plaintiff.

Joseph E. Warner, Atty. Gen., and Roger Clapp, Asst. Atty. Gen., for respondent.

RUGG, Chief Justice.

This petition for a writ of mandamus was heard upon petition and answer.

It comes here on the respondent's exceptions to an order that the writ issue. The facts thus displayed are that the petitioner, a resident of Boston, while in the exercise of due care, was injured on March 25, 1928, by the negligence of one Harry E. Flaherty, a resident of this commonwealth, in driving a motor vehicle on a public highway in Boston; that on March 6, 1929, she brought an action of tort in the superior court against said Flaherty, and the officer to whom the writ was given for service made return that he was unable to find the defendant in order to make service; that pursuant to statute service was made upon the registrar of motor vehicles and the statutory fees were paid him; that the registrar of motor vehicles refused to send the notice, or copy thereof, in accordance with statute, to said Flaherty; that it was not until about January 1, 1929, that said Flaherty filed an irrevocable power of attorney with the registrar of motor vehicles as a condition for securing registration of a motor vehicle for the year 1929; that after the entry of the writ brought by the plaintiff against said Flaherty in the superior court order for further notice to him was given by the court, and that the action has been continued until service shall have been made upon the defendant.

The decision of the case depends primarily upon the legal effect and proper construction of St. 1928, c. 344, declared to be an emergency law, whereby there was added to G. L. c. 90, six new sections, sections 3A, 3B, 3C, 3D, 3E and 3F. Section 3B is in the words following: ‘The operation by any person, by himself or his agent, of any motor vehicle, whether registered or unregistered, and with or without a license to operate, on any public way in this commonwealth, shall be deemed equivalent to an appointment by such person of the registrar, or his successor in office, to be his true and lawful attorney upon whom may be served all lawful processes in any action or proceeding against him, growing out of any accident or collision in which he or his agent may be involved while operating a motor vehicle on any public way in this commonwealth, and such operation shall be a signification of an agreement by such person that any such process against him which is served upon the registrar or his successor in office shall be of the same force and validity as if served upon him personally. This section shall not apply in case of any cause of action, for the service of process in which provision is made by section three A, nor shall it authorize service of process upon any person who has executed a power of attorney under section three D.’ Section 3A, originally enacted by St. 1923, c. 431, § 2, relates exclusively to a resident of any other state or country. Section 3d requires that every application under G. L. c. 90, §§ 2-5, inclusive, for the registration of a motor vehicle, or under section 8 for a license to operate a motor vehicle, shall contain an irrevocable power of attorney appointing the registrar of motor vehicles as agent for the purpose of service of process in any action or proceeding growing out of an accident or collision in which he or his agent may be involved while operating the motor vehicle during the period covered by the registration or license. Section 3C relates to the method of service upon the registrar of motor vehicles and provides that ‘such service shall be sufficient service upon a defendant who has thereunder appointed the registrar or his successor his true and lawful attorney therefor; provided, that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff to the defendant, and the defendant's return receipt and the plaintiff's affidavit of compliance herewith are filed with the papers in the case on or before the return day of the process or within such further time as the court may allow,’ with a further provision for service by an officer qualified to serve legal process not material to the case at bar.

Said St. 1928, c. 344, was approved and took effect on May 28, 1928. G. L. c. 4, § 1. By St. 1928, c. 390, also declared to be an emergency law, the operation of said section 3D was suspended during the then current year, and all certificates of registration and licenses to operate issued during the year 1928 subsequently to May 28 and before ‘the effective date of this act are hereby validated and made...