O'Tier v. Sell
| Decision Date | 07 January 1930 |
| Parties | O'TIER v. SELL et al. |
| Court | New York Court of Appeals Court of Appeals |
Action by June O'Tier against Walter Sell and others. From an order of the Appellate Division, Fourth Department (226 App. Div. 434, 235 N. Y. S. 534), reversing an order of the Special Term, which set aside the service of summons, defendant named appeals.
Order of Appellate Division reversed, that of Special Term affirmed, and certified questions answered.
The following questions were certified:
‘1. Does this action against the defendant, Walter Sell, grow out of an accident or collision in which he was involved while operating a motor vehicle on a public highway of the State of New York within the meaning of the language of section 285-a of the Highway Law of said State, inserted therein as an amendment by chapter 465 of the Laws of 1928, taking effect July 1, 1928?
Appeal from Supreme Court, Appellate Division, Fourth department.
Charles E. Spencer, of Syracuse, for appellant.
Lrving H. Lessen, of Syracuse, for respondent.
The complaint alleges that the plaintiff was injured in the county of Onondaga, state of New York, in a collision with an automobile owned by the defendant Sell and operated by Karl R. Trevor, an employee of the H. H. Franklin Manufacturing Company. The defendant Sell is a resident of Pennsylvania. In an action against a nonresident ‘growing out of any accident or collision in which such nonresident may be involved while operating a motor vehicle’ on a public highway, the summons may be served in accordance with the provisions of section 285-a of the Highway Law () by leaving a copy with the secretary of state. The plaintiff served the summons and complaint in that manner, and the defendant Sell moved to set aside that service on the ground that he was not ‘operating’ the motor vehicle at the time of the accident.
It appears from the affidavits submitted upon the motion that Sell, an employee of the Franklin Company, drove his automobile to Syracuse to attend a convention of the employees of the company. While there Sell took his car to the factory of the Franklin Company and stated that he was having some trouble with the car. Trevor and Sell drove the car for an hour and a half; then Sell left the car at the factory with Trevor, and Trevor stated ‘that he would proceed immediately to find out what the trouble with said automobile was and repair the same, and that he would report to Walter Sell.’ The accident occurred the next day, while Trevor was driving the car for the purpose of finding the ‘trouble.’ Sell was not at that time in the car.
Under the common law of this state the owner of a motor vehicle was responsible for injuries caused by his own negligence, or the negligence of his agent, in the operation of the vehicle. If the automobile was not being operated by the owner, personally or through an agent, the owner was not responsible for the negligence of the operator. Section 282-e of the Highway Law () extended the owner's responsibility to include negligence of a third party, who operated a motor vehicle with the owner's permission. Perhaps under the new statute the defendant Sell is responsible for the negligence of the operator of the car at the time of the accident. The operator was not Sell's agent, but we assume for the present, without considering the correctness of the assumption, that Trevor was then operating the car with Sell's permission, within the meaning of the statute. In order to enforce the statutory liability, personal service within the state must be made upon the defendant Sell, unless the statute otherwise provides. The statute does provide for constructive service upon a nonresident in an action ‘growing out of any accident or collision in which such nonresident may be involved’ while operating a motor car. We are asked by construction to read into the words ‘while operating a motor vehicle’ an additional clause, ‘or while the car is being operated...
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