Larrivee v. McGann

• Decision Date: 28 February 1967
• Docket Number: No. 30623,30623
• Citation: 26 Conn.Supp. 508,227 A.2d 809
• Court: Connecticut Superior Court
• Parties: Elodien J. LARRIVEE et al. v. James T. McGANN.

Page 809

227 A.2d 809

26 Conn.Supp. 508

Elodien J. LARRIVEE et al. v. James T. McGANN.

No. 30623.

Superior Court of Connecticut, New Haven County, at Waterbury.

Feb. 28, 1967.

Joseph Protter, Waterbury, for named plaintiff.

G. Bradford Palmer and Carmody & Torrance, Waterbury, for plaintiff The Reymond Baking Co.

William B. Fitzgerald, Waterbury, specially appeared for defendant.

MEYERS, Judge.

In the instant plea in abatement, the defendant claims that this court does not have jurisdiction in personam of him because of the failure of the service in this cause to be made in accordance with General Statutes § 52-62 or § 52-63. Section 52-62 sets out the conditions and requirements necessary to effectuate valid constructive or substituted service of process on a nonresident in an action for negligent operation of a motor vehicle upon any public highway of this state. Section 52-63 provides, in an action for such a cause, for similar service on a motor vehicle operator or owner who is not found at his recorded address.

The file contains a stipulation of the parties dated November 30, 1966, which includes facts relative to the purported service, locus of the accident involved, and the traffic controls in that area. The defendant, a resident of this state on the date of the collision complained of, moved to Yonkers, New York, prior to the institution of this suit against him on February 17, 1966. Service of process was made on the motor vehicle commissioner of Connecticut, and a true and attested copy of the original writ, summons and complaint was sent by registered mail to Yonkers, New York. The return of the officer, Francis J. Chilone, deputy sheriff for Hartford County, annexed to that which was returned to this court, does not contain a certification by the officer that he made diligent search to obtain service on the defendant at his last address on file in the motor vehicle department. A further stipulation in open court gave the last pertinent addresses of the defendant to be 138 Dix Road, Wethersfield, and 166 Woodycrest Road, East Hartford. The return fails also in that it does not recite that the officer was unable to make such service as required.

The statute, § 52-62, by which substituted or constructive service can be made upon a nonresident motorist in a negligence action involving damages resulting from the operation of an automobile on a public highway of this state, does not apply to a defendant who resided here at the time of the accident. In such circumstances, no jurisdiction in personam may so be acquired. Stern v. Mottram, 20 Conn.Sup. 406, 411, 137 A.2d 551 (1957). Section 52-62 need not be further examined.

In the brief of the plaintiff The Reymond Baking Company, owner of the vehicle which was damaged and which the named plaintiff was operating, it is contended that service was made in accordance with § 52-63, which is entitled, and deals with, 'Service on motor vehicle operator or owner not found at his recorded address.' This statute provides that in the event it is impossible to make service of civil process upon a defendant owner or defendant operator of a vehicle driven on a public highway at his last address on file in the motor vehicle department, or if the person sought to be served has left the state prior to commencement of the action or his present whereabouts is unknown, certain specific steps are to be taken as are therein set out in order that substituted or constructive service be accomplished. Section 52-63 provides, inter alia, that service may be made by leaving with, or at the office of, the commissioner of motor vehicles a true and attested copy of the writ, summons and complaint in such civil process bearing the officer's certification thereon to the effect that in spite of diligent search to obtain service at the defendant's last address on file in the motor vehicle department such service could not be effected. A further provision of § 52-63 obliges the officer having such process for service to send, by registered or certified mail, a true and attested copy of the writ, summons and complaint to the defendant at his last address on file in the motor vehicle department.

Apart from the admitted service upon the motor vehicle commissioner, the requirements of § 52-63 have not, here, been complied with. This court cannot agree that the absence of the officer's certification and the failure to act in accordance with the clear requirement of mailing are to be considered of no significance because the certification and the mailing would be either 'futile gestures' or 'formalistic or meaningless actions,' or because the defects are circumstantial within General Statutes § 52-123 or amendable under § 52-72. As to the claimed futility of compliance with the required mailing provision in all its detail, it is conceivable that if there had been compliance the forwarding of the notice could have occurred. This reasonable possibility the legislature, too, might well have had in mind when it included the requirement in § 52-63. Stephenson, Conn.Civ.Proc. § 4g. If we assume, arguendo, that the absence of the requisite certification is an amendable defect or even that the omission was waived by the filing of the special appearance by the defendant, the more serious and determinative fact remains and presents itself in the complete failure to comply with the mailing provision of § 52-63. It is fundamental that an amendable defect appears in the process itself and not in its service. Hyde v. Richard, 145 Conn. 24, 26, 138 A.2d 527 (1958).

The constitutionality of such statutes as § 52-63 is, in our era, no longer in question. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927). It is necessary, however, that such laws contain, as this one does, provisions designed to, and which will, make it reasonably probable, all circumstances considered, that notice of the institution and pendency of an action will be communicated to the person sought to be affected. The requirement of mailing, as it appears, is just such a safeguard and cannot be held lightly. Where substituted or constructive service is provided for, the leaving of a copy of the writ, summons and complaint with or at the office of the commissioner and the sending of a copy to the defendant, addressed to his last address on file in the motor vehicle department, are both a part of the service of process and are joined so that it is evident that the legislature considered them parts of one act. Hartley v. Vitiello, 113 Conn. 74, 79, 154 A. 255 (1931). A statute such as § 52-63, existing in derogation of common law as to the service of process and the obtaining of jurisdiction in personam, must be strictly complied with to secure the benefits sought and intended by the legislation. 61 C.J.S. Motor Vehicles § 502(a), p. 150; 8 Am.Jur.2d, Automobiles and Highway Traffic, § 850. Further, in the matter of constructive service not only must there be strict compliance with statutory requirements but the facts showing such compliance must appear of record. Carter v. Carter, 147 Conn. 238, 243, 159 A.2d 173 (1960).

Though the foregoing is considered to include sufficient reason for sustaining the plea in abatement, consideration is now given to the request by counsel that there also be a determination made as to plaintiff's claim that the accident took place on a public highway. The defendant contends that the statutes herein referred to are inapplicable for the reason that operation on a public highway is not involved and that therefore another ground exists for his position that the service as made was a He relies on the stipulated fact concerning the locus of the collision and that it was in what he claims to be the private parking lot of the Colonial Shopping Plaza in Waterbury.

The plaintiffs argue that the road upon which the motor vehicle collision complained of took place was provided for, was open to and was used by the customers of the many stores and business establishments located in the Colonial Shopping Plaza. Further, the plaintiffs say that the posted speed limits within the plaza area were established by the city of Waterbury pursuant to...