Pawloski v. Hess

Decision Date20 September 1924
Citation250 Mass. 22,144 N.E. 760
PartiesPAWLOSKI v. HESS.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Report from Superior Court, Worcester County; A. H. Weed, Judge.

Action of tort by Leo Pawloski, p. p. a., against H. W. Hess, to recover for personal injuries received while a traveler on a public way by reason of negligence or wanton misconduct of defendant in driving a motor vehicle. Court denied motion to dismiss and overrule answer in abatement. On report. Affirmed.

1. Constitutional law k249, 309(2)-Process k85-Statute permitting service of process against nonresident motorist by mailing and delivery to registrar held constitutional.

G. L. c. 90, as amended by St. 1923, c. 431, s 2, by addition of sections 3a and 3b, relating to service of process upon nonresident motorist by delivery of precept to registrar of motor vehicles and mailing of notice of such service and copy of process, is not unconstitutional, being within the police power.

2. Constitutional law k48-Statutes refused enforcement only when conflict with Constitution is beyond reasonable doubt.

Statutes will be refused enforcement only when their conflict with Constitution is beyond reasonable doubt.

3. Constitutional law k235, 292-Use of unlicensed motor vehicles on highways by nonresidents may be prohibited.

Police regulations respecting use of highways by nonresident operators of motor vehicles may prohibit such use, unless and until licensed by state.

Harry J. Meleski, of Worcester, for plaintiff.

Joseph Wentworth, of Boston, and S. B. Ecker, of New York City, for defendant.

RUGG, C. J.

This is an action of tort wherein the plaintiff, a resident of Worcester within this commonwealth, seeks to recover compensation for personal injuries received by him while a traveler upon a public way in said Worcester by reason of the negligence or wanton misconduct of the defendant in driving a motor vehicle. The defendant is a resident of Pennsylvania. Service has been made upon the defendant by delivery of a precept in hand to the registrar of motor vehicles of this commonwealth and by sending notice of such service to the defendant by registered mail, whose receipt therefor with affidavit of service is made a part of the record. There has been full compliance with the provisions of G. L. c. 90, as amended by St. 1923, c. 431, § 2, by the addition of two sections. The material part of those sections is in these words:

Section 3a. The acceptance by a nonresident of the rights and privileges conferred by section three or four, as evidenced by his operating a motor vehicle thereunder, or the operation by a nonresident of a motor vehicle on a public way in the commonwealth other than under said sections, shall be deemed equivalent to an appointment by such nonresident 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 said nonresident may be involved while operating a motor vehicle on such a way, and said acceptance or operation sahll be a signification of his agreement that any such process against him which is so served shall be of the same legal force and validity as if served on him personally. Service of such process shall be made by leaving a copy of the process with a fee of two dollars in the hands of the registrar, or in his office, and such service shall be sufficient service upon the said nonresident: 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 appended to the writ and entered with the declaration. The court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action.

Section 3b. The fee of two dollars paid by the plaintiff to the registrar at the time of the service shall be taxed in his costs if he prevails in the suit. The registrar shall keep a record of all such processes, which shall show the day and hour of service.’

The single question for decision is whether jurisdiction has been acquired over the defendant. The constitutionality of the statute is assailed on the ground that it purports to subject to the judicial process of our courts a nonresident without personal service, and attempts to enlarge the jurisdiction of our courts beyond the territorial boundaries of the commonwealth.

[1] This statute is plainly enacted in the exercise of the police power. It is designed to afford protection to the personal safety of travelers on the highways of our commonwealth. Its purpose is to promote the public safety and to conserve the public health. These ends are universally recognized as appropriate objects for the exercise of the police power. Specifically, the aim of the statute is to facilitate the enforcement of civil remedies by those injured in their person or property by the negligent or wanton operation of motor vehicles upon the highways of this commonwealth.

It is to be noted that the statute here called in question is confined on the present record to causes of action which, although transitory in nature, occur in fact within this commonwealth and which result from the act of the nonresident during his presence here and while using the facilities of travel afforded by the exercise of the sovereign power of the commonwealth, either directly or through its subordinate governmental agencies, in taking land for highways and in spending public money for their construction and maintenance. There is no constitutional mandate, so far as we are aware, which compels the government of this commonwealth to provide highways for general public use. It is an appropriate governmental function to undertake such public works. Having constructed them, reasonable and uniform regulations may be enforced concerning their use. Legislation attempting to put nonresidents on the same general footing as our own citizens with respect to the use of such public facilities does not violate any constitutional guaranty. Hendrick v. Maryland, 235 U. S. 610, 35 Sup. Ct. 140, 59 L. Ed. 385. It is matter of common knowledge that this commonwealth has expended many millions of dollars in the construction of new and the adaptation of old highways for convenient use by those traveling by motor vehicles. It is the duty as well as the right of the commonwealth to adopt all practicable and reasonable measures to insure the safety and health of all travelers on highways, whether in motor vehicles or in other ways. ‘The movement of motor vehicles over the highways is attended by constant and serious dangers to the public.’ Hendrick v. Maryland, 235 U. S. 610, 622, 35 Sup. Ct. 140, 142 (59 L. Ed. 385). It is also matter of common kowledge that many lives are lost and large numbers of persons injured through the operation of motor vehicles on highways. Any rational legislation calculated to diminish this appalling impairment of human usefulness and happiness is within the province of the legislative department of government. Commonwealth v. Pentz, 247 Mass. 500, 143 N. E. 322. The general court well may have thought that one effective means for curbing negligence or wanton misconduct in the operation of motor vehicles would be the existence of swift, inexpensive and adequate remedy for injuries flowing therefrom. When one sustaining damage within this commonwealth from the negligence or wanton misconduct of a nonresident is compelled to seek relief in the courts of a jurisdiction where personal service of process may be made upon him, ‘in many instances the cost of the remedy would’ largely exceed ‘the value of its fruits. * * * The result would be, to a large extent, immunity from all legal responsibility’ on the part of such nonresident. Railroad Co. v. Harris, 12 Wall. 65, 84, 20 L. Ed. 354. There is no necessary duration to the sojourn here of a nonresident operating a motor vehicle on our highways such as commonly would accompany the transaction of business or the establishment of any mercantile or manufacturing enterprise. He might easily betake himself outside our boundaries in a very few hours, even from the most remote corner of the commonwealth, and from most places in a considerably shorter time.

[2] These considerations cannot override fundamental rights or warrant attempts at unauthorized extensions of jurisdiction. They merely serve to emphasize the wellrecognized presumption in favor of the constitutionality of every statute and the requirement generally fixed by courts for their guidance, that statutes will be refused enforcement only when their conflict with the Constitution is beyond reasonable doubt. They indicate that the Legislature in enacting the statute may have been attempting to remedy pressing evils of a practical nature. As was said in Hendrick v. Maryland, 235 U. S. 610, 624, 35 Sup. Ct. 140, 59 L. Ed. 385, with respect to this special kind of statute: ...

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    ...Slocum, 230 Mass. 180, 119 N. E. 687;Burgess v. Mayor and Aldermen of Brockton, 235 Mass. 95, 126 N. E. 456, and Pawloski v. Hess, 250 Mass. 22, 144 N. E. 760, 35 A. L. R. 945, have no relevancy to the present question. [6] The proposed bill imposes an excise tax based in part upon value of......
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