Proulx v. Goulet
| Decision Date | 30 July 1970 |
| Docket Number | Civ. A. No. 5826,5827. |
| Citation | 315 F. Supp. 622 |
| Parties | Fernand PROULX v. Rene GOULET. J. Doris CAMPBELL v. Rene GOULET. |
| Court | U.S. District Court — District of Vermont |
Kinney & Carbine, Rutland, Vt., for plaintiffs.
Ryan, Smith & Carbine, Rutland, Vt., for defendant.
For, and only for, the purposes hereof, these two cases involving a driver and passenger in the same accident have been consolidated. The facts in each case are essentially the same.
The defendant, Rene Goulet, having given his street and post office address as South Hero, Vermont, on his Motor Vehicle report, also advised the State Trooper investigating the accident that his address was Box 225, South Hero, Vermont. Counsel for the plaintiffs checked with the Town Clerk of South Hero and found that the defendant, Rene Goulet, had left this small Vermont town and his whereabouts were unknown. The plaintiffs' attorney then telephoned an insurance agency in St. Albans, Vermont, and gave it notice that he represented the plaintiffs in actions against their assured; this was later followed by a letter to the agency as well as by a telephone call to a claims supervisor of the Aetna Casualty and Surety Company in Rutland, Vermont.
Subsequently the plaintiffs filed complaints with instructions that the summons be issued and that substituted service be made upon the Commissioner of Motor Vehicles of the State of Vermont, as provided in 12 V.S.A. §§ 891 and 892. In accordance with the Vermont statute, plaintiffs' attorney sent registered letters with return receipt requested to "Mr. Rene Goulet, South Hero, Vermont," and filed his affidavit of compliance with the Court. The registered letters were returned to the plaintiffs' attorney checked "Moved, left no address." Plaintiffs' attorney also mailed copies of the process to the above stated claims supervisor of the Aetna Casualty and Surety Company.
On April 10, 1970, after the time for appearance had expired but before any motion for judgment by default was filed, an appearance was filed for Rene Goulet by a Rutland, Vermont, law firm, which moved to dismiss the case on the ground of lack of jurisdiction of the person, insufficient process, insufficient service of process and lack of jurisdiction of the subject matter.
Under Fed.R.Civ.P. 4(d) (1) and (7), service on an individual is sufficient either in the manner prescribed in Rule 4(d) (1) or, as stated in Rule 4(d) (7), "in the manner prescribed by the law of the state in which the district court is held for the service of summons * * *," provided, of course, that state procedure comports with the constitutional requirements of due process of law. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The questions presented here, then, are whether the Vermont statute providing for substituted service requires any further action on the part of plaintiffs to obtain jurisdiction and, if it does not, whether the constitutional requirements of Wuchter v. Pizzutti, 276 U.S. 13, 48 S. Ct. 259, 72 L.Ed. 446 (1928), and Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877), have been met.
The Vermont statute plainly requires nothing further to be done by the plaintiffs. By virtue of operating a motor vehicle in the state of Vermont the defendant is deemed to have appointed the commissioner of motor vehicles "to be his true and lawful attorney upon whom may be served all lawful process in any action or proceeding." The statute goes on to provide:
"Such acceptance shall be deemed to be the agreement of such person that any process against him which is so served upon the commissioner shall be of the same legal force and validity as if served on the person personally."
Section 892 then proceeds to say how service shall be made and provides that service on the commissioner "shall be sufficient service upon the person, provided that a copy of such process * * * is sent by the plaintiff to the defendant by registered mail." (Italics supplied.) Law's Adm'r v. Culver, 121 Vt. 285, 155 A.2d 855 (1959), states that "It is apparent that the legislature intended by the amendment of 1951 to make the statute applicable to persons who absent themselves from the state, whether residents or non-residents." 121 Vt. at 289, 155 A.2d at 858.
It is true that "no court may properly subject a person to its jurisdiction by merely notifying him by an undelivered letter directing him to come to court, in the absence of statutory basis for such procedure." Fleming v. Lake Delton Development Co., 241 F.2d 865, 866 (7th Cir. 1957). But the substituted service statute here involved expressly permits service to be accomplished by delivery to the commissioner of motor vehicles as attorney provided that a copy of the process is "sent"—the statute doesn't say "delivered"—by the plaintiff to the defendant.
The question arises whether the statute, so applied, is constitutional. This was a question which the Vermont Supreme Court took pains not to answer, even while citing State ex rel. Thompson v. District Court of Fourth Judicial District in and for Missoula County, 108 Mont. 362, 91 P.2d 422, upholding such a statute. Law's Adm'r v. Culver, 121 Vt. 285, 290-291, 155 A.2d 855 (1959). Certainly such a statute is a valid exercise of power by a state on the basis that it has the right to regulate the use of its highways. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927). All that Wuchter v. Pizzutti, supra, holds is that such a statute must "contain a provision making it reasonably probable that notice of the service * * * will be communicated to the * * * defendant who is sued." 276 U.S. 13, 18, 48 S.Ct. 259, 260. In Mr....
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Colley v. Dyer
...to find the missing driver. See also Gibson v. Salvatore, 102 A.D.2d 861, 476 N.Y.S.2d 930, 932 (1984). The court in Proulx v. Goulet, 315 F.Supp. 622, 624-25 (D.Vt.1970) first found jurisdiction by substituted service on the commissioner of motor vehicles and then Moreover, someone--presum......