Duggan v. Ogden

• Decision Date: 15 March 1932
• Citation: 180 N.E. 301,278 Mass. 432
• Parties: DUGGAN v. OGDEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

278 Mass. 432

180 N.E. 301

DUGGAN

v.OGDEN.

Supreme Judicial Court of Massachusetts, Suffolk.

March 15, 1932.

Appeal from Superior Court, Suffolk County; F. T. Hammond, Judge.

Action by Rose Duggan against William M. Ogden. The action was dismissed, and plaintiff appeals.

Reversed.

J. E. O'Connell, of Boston, for appellant.

Walter M. Burse, of Boston, for appellee.

RUGG, C. J.

This is an action of tort wherein the plaintiff seeks to recover compensation for personal injuries alleged to have been received by her in Boston, in this commonwealth, on April 4, 1925, while a pedestrian, through the negligent operation of an automobile owned by and operated in behalf of the defendant, who is described in the writ as a resident of Pawtucket, in the state of Rhode Island. The writ is dated April 2, 1931. Service was made on April 10, 1931, by delivering to the registrar of motor vehicles an attested copy of the writ together with the statutory fee. Return by a deputy sheriff of our county of Bristol is that on April 20, 1931, he delivered in hand to the defendant in Pawtucket, in the state of Rhode Island, a summons for his appearance at court as directed in the writ. The defendant filed a motion to dismiss on the ground that he had not been served properly and that the court had acquired no jurisdiction over him. This motion to dismiss was allowed and the plaintiff appealed.

It was enacted in substance by St. 1923, c. 431, § 2, whereby sections 3A and 3B were added to G. L. c. 90, that a non-resident of the commonwealth who availed himself of the rights and privileges of our laws by operating his motor vehicle thereunder on our ways should be deemed to have appointed the registrar of motor vehicles his agent for the service upon him of all lawful process in an action against him growing out of any accident or collision in which such non-resident may be involved while operating a motor vehicle on our ways. Said chapter 431 prescribed how service of process should be made on the registrar of motor vehicles and the amount of the fee to be paid him, and further enacted that such service should be valid ‘provided, that notice of such service and a copy of the process are forthwith sent * * * by the plaintiff to the defendant’ by registered mail and the return receipt and affidavit of compliance with the statutory proviso appended to the writ. The constitutionality of that statute was sustained in Pawloski v. Hess, 250 Mass. 22, 144 N. E. 760, 35 A. L. R. 945, and affirmed sub nomine Hess v. Pawloski, 274 U. S. 352, 47 S. Ct. 632, 71 L. Ed. 1091. Said chapter 431 was in force at the time the plaintiff's cause of action accrued. It was amended by St. 1928, c. 344, whereby said sections 3A and 3B were stricken out and new sections inserted in their places and four additional sections, 3C, 3D, 3E, and 3F, were inserted in G. L. c. 90. So far as here material the provisions in said chapter 344 as to the appointment by a non-resident of the registrar of motor vehicles as his agent upon whom service of process may be made are the same as those in the earlier statute, said chapter 431. If and so far as there are changes in this respect, they wrought no change in the law which must be considered as continuously operative. Main v. County of Plymouth, 223 Mass. 66, 69, 111 N. E. 694;Commonwealth v. Welosky (Mass.) 177 N. E. 656. This provision as to the appointment of an agent by a non-resident upon whom service of process may be made is the main feature of both chapter 431 and chapter 344. The latter statute by section 3C made two changes in respect of the proviso for enforcing actual notice to such non-resident of the service of process against him made upon the registrar of motor vehicles as his agent. The provision for transmitting such notice by registered mail was continued as before. There were added alternative provisions to the effect that notice of such service and copy of process might be served upon the defendant if found within the commonwealthby an officer qualified to serve process, or if found without the commonwealth by a sheriff or deputy sheriff of any county in this commonwealth or by a duly constituted public officer qualified to serve such process in the jurisdiction where the defendant is found. These changes relate to practice and procedure and not to substantive rights. They therefore are applicable to actions brought subsequently to, although the cause of action may have arisen before, the enactment of said chapter 344. Hanscom v. Malden & Melrose Gas Light Co. 220 Mass. 1, 3, 107 N. E. 426, Ann. Cas. 1917A, 145;Devine's Case, 236 Mass. 588, 594,129 N. E. 414;Hollingsworth & Vose Co. v. Recorder of Land Court, 262 Mass. 45, 159 N. E. 543;Ferreira v. Franco, 273 Mass. 272, 274, 173 N. E. 529;Moffatt v. Martell (Mass.) 177 N. E. 102;Fullerton-Krueger Lumber Co. v. Northern Pacific Railway, 266 U. S. 435, 437, 45 S. Ct. 143, 69 L. Ed. 367;United States v. St. Louis, San Francisco & Texas Railway, 270 U. S. 1, 3, 46 S. Ct. 182, 70 L. Ed. 435. Practice and procedure include the mode of proceeding and the formal...