Toczko v. Armentano

• Decision Date: 02 December 1960
• Parties: Annette Joan TOCZKO, Administratrix, v. Anthony J. ARMENTANO, Administrator.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 703

170 N.E.2d 703

341 Mass. 474

Annette Joan TOCZKO, Administratrix, v. Anthony J. ARMENTANO, Administrator.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued Sept. 30, 1960.

Decided Dec. 2, 1960.

Edward M. Dangel, Boston, Sebastian J. Ruggeri, Greenfield, for plaintiff.

William H. Welch, Edward L. O'Brien, Northampton, for defendant.

Before WILKINS, C. J., and SPALDING, WHITTEMORE and CUTTER, JJ.

WILKINS, Chief Justice.

The plaintiff is the administratrix of the estate of her husband, Adolph John Toczko, late of Hatfield, by appointment of the Probate Court for Hampshire County. The defendant, on July 1, 1954, was appointed administrator of the estate of Edward S. Young, late of Enfield in the State of Connecticut, by the Probate Court for the county of Hartford in that State. The defendant holds no appointment in this Commonwealth. Although the fact does not appear in the record, both briefs state that there are no assets formerly of Young in this Commonwealth. This action of tort by writ dated August 16, 1954, is to recover for the death and conscious suffering of the plaintiff's intestate, who on December 13, 1953, was a social guest in an automobile, registered in Connecticut, owned by the defendant's intestate, and operated by the latter on a public way in Athol, where it struck a telephone pole.

The jury returned verdicts for the plaintiff: (1) $21,016.61 on count 1 for death, and (2) $7,500 on count 3 for conscious suffering due to gross negligence. Under leave reserved the trial judge entered a verdict for the defendant on each count. Both parties allege exceptions.

1. According to the sheriff's return, service of the writ was made upon the registrar of motor vehicles. The defendant appeared generally. Inasmuch as this opinion upholds the validity of that service, the effect of the general appearance needs no separate discussion. During the trial the defendant filed a plea to the jurisdiction which was overruled. The plea alleged, in part, that service was made by sending him notice by registered mail as provided in G.L. c. 90, §§ 3A and 3C, and that these statutes, in so far as they provide for service and jurisdiction over a nonresident executor or administrator, are in violation of § 1 of the Fourteenth Amendment to the Constitution of the United States. General Laws c. 90, § 3A, as appearing in St.1953, c. 366, § 1, ¹ provided: 'The acceptance by a person who is a resident of any other state * * * of the rights and privileges conferred by section three, as evidenced by the operation, by himself or agent, of a motor vehicle thereunder, or the operation by such a person, by himself or his agent, of a motor vehicle on a way * * * in this commonwealth otherwise than under said section, shall be deemed equivalent to an appointment by him of the registrar * * * to be his true and lawful attorney upon whom may be served all lawful processes in any action or proceeding against him or his executor or administrator, growing out of any accident or collision in which such person or his agent may be involved while operating a motor vehicle on such way * * * and said acceptance or operation shall be a signification of his agreement that any such process against him, or his executor or administrator, which is so served shall be of the same legal force and validity as if served on him personally.'

Reference to the executor or administrator of a deceased operator was introduced into § 3A by St.1952, c. 125. The defendant urges that this amendment is unconstitutional as a deprivation of property without due process of law and as a denial of the equal protection of the laws. He relies upon the general proposition that the appointment of an executor or administrator in one State is without force in another. See Newhall, Settlement of Estates (4th ed.) § 69. He argues that in this Commonwealth a foreign administrator cannot sue (Brown v. Boston & Maine R. R., 283 Mass. 192, 195, 186 N.E. 59) or be sued. Beaman v. Elliot, 10 Cush. 172, 173. See Restatement: Conflict of Laws, § 512.

Such considerations are presently irrelevant. The purpose of the amendment of § 3A by St.1952, c. 125, was to fill a loophole. See State ex rel. Ledin v. Davison, 216 Wis. 216, 223, 256 N.W. 718, 96 A.L.R. 589, and cases collected in notes in 155 A.L.R. 345, 18 A.L.R.2d 544, and 53 A.L.R.2d 1194-1196; Young v. Potter Title & Trust Co., 114 N.J.L. 561, 566, 178 A. 177. The amendment was in aid of the intent of the original statute. That intent was to assure to one, sustaining injury or damage due to the operation here of an automobile by a nonresident, the opportunity to seek redress in our own courts rather than to be remitted to bringing an action outside the Commonwealth wherever jurisdiction might be found, a circumstance which might render illusory the right to sue. Pawloski v. Hess, 250 Mass. 22, 24-26, 144 N.E. 760, 35 A.L.R. 945; Id., 253 Mass. 478, 149 N.E. 122; Hess v. Pawloski, 274 U.S. 352, 355-356, 47 S.Ct. 632, 71 L.Ed. 1091.

It would be an incomplete achievement to leave uncovered the case of a nonresident operator who may not have survived the accident or who, for any reason, may not have lived long enough for trial of the action against him. The statute was enacted under the police power. There is no constitutional provision which prevents our Legislature from authorizing service of process for the purpose of bringing such personal representatives into our courts to answer to the type of case with which we are concerned. This is a jurisdiction based upon consent, which arises from the operation of the automobile within this Commonwealth. The appointment of the registrar as agent for service of process was irrevocable. The agency is not one which terminates with the death of the principal, for it was created not for his benefit but for the benefit of third persons. Restatement 2d: Agency, §§ 120, 139; Leighton v. Roper, 300 N.Y. 434, 442-443, 91 N.E.2d 876, 18 A.L.R.2d 537; See Iovino v. Waterson, 2 Cir., 274 F.2d 41, 47, certiorari denied sub nom. Carlin v. Iovino, 362 U.S. 949, 80 S.Ct. 860, 4 L.Ed.2d 867. See also Band v. Davis, 325 Mass. 18, 20-21, 88 N.E.2d 652. As Mr. Justice Brandeis said for the court in Young v. Masci, 289 U.S. 253, 259, 53 S.Ct. 599, 601, 77 L.Ed. 1158, 'The power of the state to protect itself and its inhabitants is not limited by the scope of the doctrine of principal and agent.'

The defendant relies upon two United States District Court cases, which are contrary to the great weight of authority. See Knoop v. Anderson, D.C.D.Iowa, 71 F.Supp. 832, 852; Derrick v. New England Greyhound Lines, Inc., D.C.D.Mass., 148 F.Supp. 496, 497. The Knoop case is criticized in two Federal Court of Appeals cases. Feinsinger v. Bard, 7 Cir., 195 F.2d 45, 48; Brooks v. National Bank, 8 Cir., 251 F.2d 37, 39 et seq. The issues hereinbefore discussed have been carefully considered and disposed of by the New York Court of Appeals in an opinion by Judge Froessel. Leighton v. Roper, 300 N.Y. 434, 91 N.E.2d 876, 18 A.L.R.2d 537. Other cases contributing to the great weight of authority are Oviatt v. Garretson, 205 Ark. 792, 171 S.W.2d 287; Plopa v. DuPre, 327 Mich. 660, 42 N.W.2d 777; State ex rel. Sullivan v. Cross, Mo., 314 S.W.2d 889, and Tarczynski v. Chicago, Milwaukee, St. Paul & Pac. R. R., 261 Wis. 149, 52 N.W.2d 396.

It is not within our province to predict what effect would be given by the Connecticut courts to a judgment entered here.

2. The defendant contends that under G.L. c. 197, § 1, this action is premature because it was brought on August 16, 1954, which was within six months of his appointment as administrator on July 1, 1954. We are of opinion, however, that c. 197, § 1, applies only to Massachusetts executors and administrators, and that the only applicable statute of limitations might be G.L. c. 260, § 4 (as amended through St.1943, c. 409, § 4), which, so far as material, provides that 'actions of tort for bodily injuries or for death the payment of judgments in which is required to be secured by chapter ninety * * * shall be commenced only within one year next after the cause of action accrues.' See Smith v. Pasqualetto, D.C.D.Mass., 146 F.Supp. 680. The present action, therefore, was seasonably brought.

Accordingly, there was no error in overruling the plea to the jurisdiction; and the entry of verdicts for the defendant under leave reserved could not rightly have been based upon lack of jurisdiction, if that was a ground of the judge's action.

3. The defendant contends that there was no evidence of gross negligence. These facts could have been found. The accident occurred on December 13, 1953, at 1:15 a. m. On the previous day, the plaintiff's intestate, the defendant's intestate, one Kovalchik, and one Kochan were deer hunting at a camp in Wendell. About 11 p. m. they arrived at a cafe in Orange, where they all had one or two highballs. They made the acquaintance of a man who with his fiancee and sister came over to their table. The defendant's intestate danced with the sister. About 12:30 or 12:45 a. m. all seven went to a diner in Athol, and finding this closed, decided to go to the camp in Wendell to have something to eat. The plaintiff's intestate and Kovalchik rode with the defendant's intestate, Kovalchik on the back seat and the plaintiff's intestate on the front. To show the way, Kochan rode in another car with the other man and the two girls. The defendant's intestate wanted to ride in that car instead of Kochan. 'After starting up, the defendant's intestate became angry and began to speed.' He 'kept on his side of the road until he came to the bridge, and from there on the car started to sway. He was getting 'tough,' was more or less losing control. He was getting madder and going faster all the time. The car was going sixty to sixty-five miles per hour as it came off the bridge.' His passengers were telling him to take it easy. They told...