Poti v. New England Rd. Mach. Co.

• Decision Date: 07 February 1928
• Citation: 140 A. 587
• Parties: POTI v. NEW ENGLAND ROAD MACHINERY CO.
• Court: New Hampshire Supreme Court

140 A. 587

POTI

v. NEW ENGLAND ROAD MACHINERY CO.

Supreme Court of New Hampshire. Sullivan.

Feb. 7, 1928.

Transferred from Superior Court, Sullivan County; Young, Judge,

Action by Sofia Poti against the New England Road Machinery Company. Defendant excepted to ruling that service was valid and to cancellation of a release, and case was transferred. Exceptions overruled.

Action for personal injuries caused by the negligence of the operator of a motor truck while driving it as the defendant's employee on a highway in Newport.

The defendant is a foreign corporation, and service was made under Laws 1925, c. 106 (P. L. c. 100, §§ 32, 33). To a ruling that the service was valid, the defendant excepted, and thereafter entered a general appearance, which it stated was made without waiver of the exception.

Before the action was brought, the parties settled the claim, and the plaintiff gave a release. On hearing, the release was canceled on the ground of mutual mistake as to the nature and extent of the injury. To such cancellation the defendant excepted on the ground of lack of evidence to sustain it.

Other facts appear in the opinion.

Francis W. Johnston, of Claremont, for plaintiff.

Roy M. Pickard, of Keene, for defendant.

ALLEN, J. The law under which service was made provides, in substance, that a nonresident's operation of a motor vehicle on any highway within the state shall be deemed equivalent to the appointment of the commissioner of motor vehicles as his agent, upon whom may be served process in any action arising out of any accident in which he may be involved while thus operating his motor vehicle, and that such operation signifies his agreement that such process so served shall amount to personal service on him within the state, provided the commissioner mails him notice of it.

The law is practically identical with one in Massachusetts, which has been held constitutional both in that state and by the United States Supreme Court. Pawloski v. Hess, 250 Mass. 22, 144 N. E. 760, 35 A. L. R. 945; Id., 253 Mass. 478, 149 N. E. 122; Id., 274 U. S. 352, 47 S. Ct. 632, 71 L. Ed. 1091. No point is made that any constitutional question in any particular not considered in that case is here raised, and its authority is affirmed.

The suggestion that the law requires the acceptance of an impossible condition as an actual one, because the nonresident's appointment of the commissioner as his agent is contrary to the fact, and that the law thus creates a relation when none exists fails to recognize the voluntary entrance of the nonresident on our highways as his act accepting its legal consequences, whatever they may be. The statute does not declare the commissioner's authority as given in terms by the nonresident, but describes the appointment as the equivalent in significance of express authority from the nonresident. It is made a condition of a nonresident's use of our highways with a motor vehicle that he may not be heard to deny the commissioner's authority, and the statute creates no relation contrary to the fact, but merely bars disproof of it.

In a broader way, the constitutional issue being met, any methods of service prescribed by the Legislature are valid, and do not depend upon the defendant's consent to it, whether he be resident or nonresident. And the phraseology of the legislation in describing the commissioner as the defendant's agent is not of importance.

The service being valid, the question of the effect of the condition of nonwaiver of the exception to the ruling relative to service, which the defendant sought to attach to its general appearance so as to avoid the loss of the exception, does not invite consideration.

The exception to the cancellation of the release on the ground of mutual mistake depends upon the sufficiency of the evidence to support the findings that there was such a mistake and that it entered into the making of the release as a material element. The defendant takes the position that it "bought its peace," and that the case is therefore on all fours with that of Cogswell v. Railroad, 78 N. H. 379, 101 A. 145. It is claimed that the purchase of peace is a necessary inference from the adjuster's testimony that liability was denied when the settlement was made. It does not appear, however, that the court adopted the testimony, or at best considered the denial, it made as. more than an argument in an effort to make the best settlement possible. More broadly, purchase of peace in the sense of its distinction from payment of damages means a settlement whether or not the parties are mistaken as to liability and as to the nature and extent of the injury. In one sense there is a purchase of peace in every settlement but, as expressing a test of the binding force of a release in spite of mutual mistake, it means that the parties in making the release agree in effect that it shall not be set aside for such a mistake. In general definition it negatives an understanding that the issues of liability and results of the injury are of the essence of making the release. In Cogswell v. Railroad, supra, it was expressly found that both parties understood that the release was "intended to settle once and for all every claim which Emery [the person injured]...