Hartley v. Vitiello

• Citation: 154 A. 255,113 Conn. 74
• Court: Supreme Court of Connecticut
• Decision Date: 06 April 1931
• Parties: HARTLEY v. VITIELLO et al.

154 A. 255

113 Conn. 74

HARTLEY v. VITIELLO et al.

Supreme Court of Errors of Connecticut.

April 6, 1931

Appeal from Court of Common Pleas, Fairfield County; Frederick W Huxford and Samuel C. Shaw, Judges.

Action for personal injuries and for damage to an automobile alleged to have been caused by the defendants' negligence brought by Clark L. Hartley against Anthony Vitiello and others. Named defendant's motion to erase for want of jurisdiction was denied, and the case was tried to the court. Judgment for plaintiff, and named defendant appeals.

No error.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

M Joseph Blumenfeld, David R. Woodhouse, and Harrison D. Schofield, all of Hartford, for appellant.

Clarence O. Lister, of Bridgeport, for appellee.

MALTBIE, C.J.

The plaintiff, a resident of Connecticut, brought this action to recover for injuries alleged to have been caused by negligence in the operation of automobiles owned by the defendants. One of them, the appellant, was described in the writ as of a certain address in New Jersey. From the return upon the writ it appears that the only service made upon him was by an officer who left a copy of the write and complaint with the commissioner of motor vehicles of this state, described as a duly authorized agent and attorney of the appellant, and mailed by registered mail a like copy to the appellant at the New Jersey address; and that the officer received a registry return receipt. Before the return day the appellant, by his attorney, entered a special appearance and filed a motion to erase the case from the docket as against him, claiming that the statute under which the service had been made upon him was ineffective under the relevant constitutional limitations to confer jurisdiction upon the court to entertain the action against him. The trial court denied the motion, and the correctness of that ruling is the sole question presented upon this appeal.

Service of the writ was made under the provisions of chapter 122 of the Public Acts of 1925, now section 5473 of the General Statutes. Revision of 1930, which is quoted in the footnote.^[1] This statute is of the same general type as those which have been enacted for a similar purpose in a number of other states. Two of these statutes have come to the Supreme Court of the United States, and the conclusions reached as to them go far to determine the question before us. In Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091, the court had before it a statute of Massachusetts. This provided that acceptance by a nonresident of the privilege of operating a motor vehicle upon the highways of the state should be deemed equivalent to the appointment of the registrar of motor vehicles as his attorney upon whom process might be served, by leaving a copy with him or in his office, and that such service should be sufficient service upon the nonresident, provided notice of it and a copy of the process were sent forthwith by registered mail by the plaintiff to the defendant and the defendant's return receipt and an affidavit of compliance with the statute were appended to the writ and entered in court; and that the court might order such continuances as might be necessary to afford the defendant a reasonable opportunity to defend the action. In its decision the Supreme Court upheld the power of the state to condition the privilege of the use of its highways by a nonresident motor vehicle operator with the requirement that such use should be deemed an appointment of the registrar as attorney for the defendant upon whom process against him might be served; it pointed out that the statute required actual notice to the defendant and provided for such continuances as might be found necessary to give him a reasonable time and opportunity to defend the action; and it held the statute effective to confer jurisdiction upon the court. In Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 262, 72 L.Ed. 446, 57 A.L.R. 1230, the court held a statute of New Jersey designed to serve the same purpose invalid to confer jurisdiction over a nonresident. The statute in question simply provided that any nonresident who accepted the privilege of operating his automobile upon the highways of the state without registering it under its laws thereby constituted the secretary of state his agent for the acceptance of service of process in any civil action arising out of any motor vehicle accident or collision; and there was no provision in the statute for any notice to the nonresident or for any continuance to permit his appearance. The court followed the Hess Case in upholding the power of the state to declare that the operation of an automobile by a nonresident upon its highways should constitute an agreement to accept service of process upon the secretary of state in actions growing out of such operation, but held that statute ineffective to confer jurisdiction because it failed to provide for any notice to the defendant. The court pointed out that every statute of this kind should impose either on the plaintiff or upon the official receiving service or some other the duty of communication by mail or otherwise with the defendant, and, after reviewing a number of decisions, it summed them up in this way: " These cases and others indicate a general trend of authority toward sustaining the validity of service of process, if the statutory provisions in themselves indicate that there is reasonable probability that if the statutes are complied with, the defendant will receive actual notice, and that is the principle that we think should apply here." These decisions and others in the state courts make it clear that statutes of the nature of the one before us are not ineffective to confer jurisdiction over the person of a nonresident defendant if compliance with their terms will bring about a reasonable probability that he will receive actual notice of the bringing of the action and if he will be afforded a reasonable opportunity to appear and defend. State ex rel. Cronkhite v. Belden, 193 Wis. 158, 211 N.W. 916, 214 N.W. 460, 57 A.L.R. 1218; Schilling v. Odlebak, 177 Minn. 90, 224 N.W. 694; Jones v. Paxton (D. C.) 27 F.(2d) 364; Herzoff v. Hommel (Neb.) 233 N.W. 458; Poti v. New England Road Machinery Co., 83 N.H. 232, 140 A. 587; Grote v. Rogers, 158 Md. 685, 149 A. 547.

Our statute requires service of the process by the officer to whom it is addressed upon the commissioner of motor vehicles " by leaving with or at the office of said commissioner at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant, by registered mail, postage prepaid, a like true and attested copy with an indorsement thereon of the service upon said commissioner, addressed to such defendant at his last-known address." Section 5473. Under our law, with very limited exceptions, process in civil actions can only be served by certain designated officers to whom it must be addressed; the officer making the service must indorse his doings upon the writ and complaint and return it to court a certain number of days before the return day; and the statements contained in such a return are held to be prima facie true. General Statutes, §§ 5463, 5466., 5503; Coast & Lakes Contracting Corporation v. Martin, 92 Conn. 11, 16, 101 A. 502. These provisions of our law have an important bearing upon the meaning of the statute before us. For instance, the sending of a copy of the process to the defendant could not in any event be postponed beyond the day when the writ had to be returned to court, because it is a part of the duty of the officer making service to indorse his doings upon the writ and complaint so that they shall appear upon it when it is returned, and, if this is not done, the process is at once abatable. But the statute properly interpreted makes a much more stringent requirement than this as to the time when the copy is to be sent to the defendant. The leaving of a copy with or at the office of the commissioner and the sending of a copy to the defendant are by the statute both made a part of the service of the process and are linked up in such a way that the Legislature obviously regarded them as parts of one act. It is not the duty of the officer to hunt up the address of the defendant after the process is put into his hands for service. Wuchter v. Pizzutti, supra, page 20 of 276 U.S., 48 S.Ct. 259. All that he is required to do, having served the copy upon the commissioner, is to attest another copy, indorse upon it that service, put it into an envelope, address it, and mail it to the defendant. Where a statute imposes a duty and is silent as to when it is to be performed, a reasonable time is implied. Ely v. Bugbee, 90 Conn. 584, 587, 98 A. 121, L.R.A. 1916F, 910. Considering the close linking in the statute of the two things to be done-service...