Paraboschi v. Shaw

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: RUGG
• Citation: Paraboschi v. Shaw, 258 Mass. 531, 155 N.E. 445 (Mass. 1927)
• Decision Date: 04 March 1927
• Parties: PARABOSCHI v. SHAW.

258 Mass. 531

155 N.E. 445

PARABOSCHI

v.SHAW.

Supreme Judicial Court of Massachusetts, Suffolk.

March 4, 1927.

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

Action by A. Letitia Paraboschi, administratrix d. b. n. of the estate of Louis Leo, against William B. Shaw. On report after allowance of motion to dismiss and sustaining of plea in abatement, both setting up want of proper service. Order granting motion to dismiss affirmed. Answer in abatement dismissed.S. A. Dearborn, of Boston, and C. L. Paraboschi, for plaintiff.

J. E. Reagan, of Boston, for defendant.

RUGG, C. J.

This is an action of tort to recover compensation for the conscious suffering of the plaintiff's intestate, a resident of Boston, resulting from injuries sustained by him on June 13, 1922, while a traveler upon a public way in this commonwealth, by reason of the negligence of an agent of the defendant in operating a motor vehicle. The defendant is described in the writ, which is dated June 11, 1923, as ‘of Providence, Rhode Island, and having a usual place of business in Boston, within our County of Suffolk.’ The return of the officer under date of June 12, 1923, states that--

‘the within named defendant William B. Shaw, not being an inhabitant of, or resident in this commonwealth, and not finding him or any last and usual place of abode, tenant, agent or attorney of his known to me as such within my precinct, I therefore could make no service of this writ upon him.’

No effective service having been obtained on the original writ, an order of notice was issued on May 7, 1925, and service thereof was made on the registrar of motor vehicles as agent of the defendant, copy was sent by registered mail to the defendant and due return thereof was made with post office return receipt of defendant, all in conformity to St. 1923, c. 431, § 2.

[1][2] The defendant appeared specially, and filed a motion to dismiss and a plea in abatement, setting up want of proper service. A motion to dismiss for want of service is proper pleading. It relates to a matter apparent on the record. It raises a pure question of law. A plea in abatement is appropriate when reliance is placed upon some fact not appearing upon the face of the record, which the opposite party may deny, and as to which there may be a trial. Nye v. Liscombe, 21 Pick. 263, 265, 266;Richmond v. Whittlesey, 2 Allen, 230;Crosby v. Harrison, 116 Mass. 114;Lowrie v. Castle, 198 Mass. 82, 83 N. E. 1118;Roberts v. Anheuser Busch Brewing Co., 215 Mass. 341, 343, 102 N. E. 316;United Drug Co. v. Cordley & Hayes, 239 Mass. 334, 132 N. E. 56;Oliver Ditson Co. v. Testa, 216 Mass. 123, 124, 103 N. E. 381. The practice is different in equity, where a motion to dismiss is irregular. Rothstein v. Commissioner of Banks, 256 Mass. --, 155 N. E. 7.

[3] The service of the order of notice according to St. 1923, c. 431, § 2, did not bring the defendant within the jurisdiction of the court. The defendant has been at all times material to this case a nonresident of the commonwealth, and no personal service has been made upon him. The substance and effect of said chapter 431 invoked by the plaintiff is that when a nonresident avails himself of the rights and privileges of operating a motor vehicle upon the highways of this commonwealth, he thereby is deemed to have appointed the registrar of motor vehicles his agent to accept service of process in any action growing out of any accident or collision in which he may be involved while so operating a motor vehicle. That statute has been held to be a valid exercise of the police power as to cases within its scope. Pawloski v. Hess, 250 Mass. 22, 144 N. E. 760, 35 A. L. R. 945. That statute was not in effect at the time of the accident out of which arose the present action. It was not enacted until some time later. There was no legislative attempt to make it applicable to actions or proceedings growing out of accidents or collisions which had arisen before it became effective. ‘The general rule of interpretation is that all statutes are prospective in their operation, unless an intention that they shall be retrospective appears by necessary implication from their words, context or objects when considered in...