Raspante v. Trans. Supply & Management, Inc.

• Decision Date: 09 March 1960
• Citation: 214 N.Y.S.2d 583
• Parties: Frank C. RASPANTE and Isabelle Raspante, Plaintiffs, v. TRANS. SUPPLY & MANAGEMENT, INC., Defendant. FRANK BONOMO & COMPANY, Inc., Plaintiff, v. TRANS. SUPPLY & MANAGEMENT, INC., Defendant. Frank J. CITRO and Mary R. Citro, Plaintiffs, v. TRANS. SUPPLY & MANAGEMENT, INC., defendant. VAN CURLER TRUCKING CORPORATION, Plaintiff, v. TRANS. SUPPLY & MANAGEMENT, INC., Defendant. BALBO OIL CORPORATION, Plaintiff, v. TRANS. SUPPLY & MANAGEMENT, INC., Defendant. Lucien CICIGLINE and Ann Cicigline, Plaintiffs, v. TRANS. SUPPLY & MANAGEMENT, INC., Defendant.
• Court: New York Supreme Court

Page 583

214 N.Y.S.2d 583

Frank C. RASPANTE and Isabelle Raspante, Plaintiffs, v. TRANS. SUPPLY & MANAGEMENT, INC., Defendant.

FRANK BONOMO & COMPANY, Inc., Plaintiff, v. TRANS. SUPPLY & MANAGEMENT, INC., Defendant.

Frank J. CITRO and Mary R. Citro, Plaintiffs, v. TRANS. SUPPLY & MANAGEMENT, INC., defendant.

VAN CURLER TRUCKING CORPORATION, Plaintiff, v. TRANS. SUPPLY & MANAGEMENT, INC., Defendant.

BALBO OIL CORPORATION, Plaintiff, v. TRANS. SUPPLY & MANAGEMENT, INC., Defendant.

Lucien CICIGLINE and Ann Cicigline, Plaintiffs, v. TRANS. SUPPLY & MANAGEMENT, INC., Defendant.

Supreme Court, Oneida County.

March 9, 1960.

Paul Reed Taylor, Penn Yan, for defendant, for the motion.

Hubbard, Felt & Fuller, Utica, for plaintiffs, opposed.

E. HOWARD RINGROSE, Justice.

The plaintiffs in the above six actions effected substituted service upon the non-resident defendant, Trans. Supply & Management Inc., under the purported authority of Section 52 of the Vehicle and Traffic Law of the State of New York. ¹

The defendant, appearing specially pursuant to Section 237-a of the Civil Practice Act, moves to vacate service on the ground that the complaints fail to allege facts sufficient to confer jurisdiction by substituted service as prescribed by Section 52 of the Vehicle and Traffic Law.

The defendant is a foreign corporation organized and existing under the laws of the State of Delaware with offices in the City of Chicago, Illinois.

The causes of action alleged in the complaints are for loss or damage to real and personal property of the plaintiffs as the result of a fire alleged to have been caused by the negligent operation of a tractor-trailer unit. The trailer was owned by the defendant, and at the time of the accident was coupled to a tractor owned by Dominick Citro and was being operated by and under the control of Alexander Mlynarczyk.

The tractor-trailer unit had been operated over a public thorough-fare and partially into a garage on the property of the plaintiff Frank Bonomo & Company, Inc., known as 1500 Broad Street, Utica, New York. A salamander or heating stove was moved to the front of the tractor, which was left unattended with the engine idling. The tractor-trailer unit rolled forward tipping over the stove, the oil from which ignited, causing a fire and substantial damage to the property of the plaintiffs in the vicinity.

The defendant urges, as the basis of its challenge to the validity of the service pursuant to Section 52 of the Vehicle and Traffic Law, that the unit was not being operated at the time, and that the accident did not occur on a public highway.

Manifestly, the word 'operate' has a variety of meanings depending upon the context of the statute in which it is used. In Witherstine v. Employers' Liability Assur. Corp., 235 N.Y. 168, 172, 139 N.E. 229, 230, 28 A.L.R. 1298, it was said: 'In connection with the use of motor vehicles, the word 'operate' seems to have acquired a definite meaning. * * * The word 'operate' is used throughout the statute [Highway Law, Cons.Laws, Ch. 25] as signifying a personal act in working the mechanism of the car.'

The meaning attributed to the word 'operate' in the Witherstine case when used in connection with a motor vehicle was followed in O'Tier v. Sell, 252 N.Y. 400, 403, 169 N.E. 624, 628, and in Wallace v. Smith, 238 App.Div. 599, 601, 265 N.Y.S. 253, 255.

Both statute and case law relating to constructive service of process on non-resident owners of motor vehicles involved in an accident in this state denote a trend toward a broader connotation of the word 'operate'. Hand v. Frazer, 139 Misc. 446, 248 N.Y.S. 557, affirmed 233 App.Div. 800, 250 N.Y.S. 947; Hurte v. Lane, D.C., 166 F.Supp. 413; Glouzwski v. Ruback, 3 A.D.2d 692 159 N.Y.S.2d 71; Warren's Negligence, Vol. 5 [1958], p. 130, citing Eckert v. G. B. Farrington Co., Inc., et al., 262 App.Div. 9, 27 N.Y.S.2d 343, affirmed 287 N.Y. 714, 39 N.E.2d 932. In the Eckert case it was observed in the concurring opinion (262 App.Div. 9, page 13, 27 N.Y.S.2d at page 346), Crosby, P. J.: 'My view with respect to this case is that the repair of the car so that it might proceed on its journey was part of the operation of the car * * *.'

As thus defined, the word 'operate' signifies control and management. It is self-evident that the tractor-trailer was being operated prior to and at the time it entered the garage. The fact that it was stopped and left standing in the garage with the motor idling and with inadequate brakes, or without applying the brakes, was directly related to its operation.

The second ground upon which the defendant relies to render the service of the summonses and complaints ineffective, is that the accident happened on private property. At the time of the accident, which happened on December 5, 1957, Section 52 of the Vehicle and Traffic Law of the State of New York, provided as follows:

'The operation by a nonresident of a motor vehicle or motor cycle in this state, or the operation in this state of a motor vehicle or motor cycle, trailer or semi-trailer owned by a nonresident if so operated with his consent, express or implied, shall be deemed equivalent to an appointment by such nonresident of the secretary of state to be his true and lawful attorney upon whom may be served the summons in any action against him, growing out of any accident or collision in which such nonresident may be involved while operating a motor vehicle in this state or in which such motor vehicle or motor cycle, trailer or semi-trailer may be involved while being operated in this state with the consent, express or implied, of such nonresident owner; and such operation shall be deemed a signification of his agreement that any such summons against him which is so served shall be of the same legal force and validity as if served on him personally within the state and within the territorial jurisdiction of the court from which the summons issues. A summons in such an action may issue in any court in the state having jurisdiction of the subject matter and be served as hereinafter provided.'

It is significant of the purpose sought to be accomplished by the statute that it does not specify operation of the motor vehicle of a nonresident on the public highway as an essential requirement authorizing substituted service.

Section 59-a of the Vehicle and Traffic Law, ² also in effect at the time of the accident, provides:

'Every owner of an auto truck or auto tractor and every owner of a trailer or semi-trailer attached, if separately owned, shall be jointly liable and responsible for death or injuries to person or property resulting from negligence in operation by any person legally using or operating the same, or either, with the permission, express or implied, of such owners. For the purposes of this section, the auto truck or auto tractor and the trailer or semi-trailer shall be deemed one vehicle and the operator, while acting in the scope of his employment shall be deemed the agent of each and the operator of the combined vehicle. * * *'

There is no limitation of liability imposed by the above statute to accidents occurring on a public highway in the event that negligence of the operator in this state of a vehicle of a non-resident, is established.

It is the contention of the defendant that if Section 52 of the Vehicle and Traffic Law contemplates constructive service of process on non-resident owners of vehicles involved in accidents on private property, it is unconstitutional, citing--Blake v. Salmonson, 188 Misc. 97, 99, 67 N.Y.S.2d 607, 609; Langley v. Bunn, 225 Ark. 651, 653, 284 S.W.2d 319; and People v. Tracey, 6 Misc.2d 681, 167 N.Y.S.2d 320.

It is an elementary rule of statutory construction that a statute should be construed to carry out the purpose of the legislature in eacting it, and the rule is especially persuasive where the legislation is reasonably within the police power of the State. Said the court in People ex rel. Wood v. Lacombe, 99 N.Y. 43, at page 49, 1 N.E. 599, at page 600:

'In the interpretation of statutes, the great principle which is to control is the intention of the legislature in passing the same, which intention is to be ascertained from the cause or necessity of making the statute as well as other circumstances. A strict and literary interpretation is not always to be adhered to, and where the case is brought within the intention of the makers of the statute, it is within the statute, although by a technical interpretation it is not within its letter. It is the spirit and purpose of a statute which are to be regarded in its interpretation; and if these find fair expression in the statute, it should be so construed as to carry out the legislative intent, even although such construction is contrary to the literal meaning of some provisions of the statute.'

The trend toward a further broadening of the base authorizing constructive service on non-resident owners of motor vehicles involved in accidents resulting in personal injuries or property damage, is evidenced by the amendment to Section 59 of the Vehicle and Traffic Law ² which, among other changes, omitted the limitation of liability to operation on the public highway of the vehicles specified in the amended statute and substituted operation in the State of New York.

In the case of International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 158, 90 L.Ed. 95, there was involved a non-resident corporation which maintained a sales force in the State of Washington and under the Washington statutes was subject to a tax and also subject to a suit to collect the same. It was the contention of the defendant that service on a sales solicitor and by registered mail to its office in a foreign State violated the due process clause of the Fourteenth Amendment. Said the Court in rejecting the contention:

'Historically the jurisdiction of courts to render judgment in...