Weiss v. Magnussen, 1190

• Decision Date: 14 February 1936
• Docket Number: No. 1190,1215.,1190
• Citation: 13 F. Supp. 948
• Parties: WEISS v. MAGNUSSEN. HAYNES v. SAME.
• Court: U.S. District Court — Eastern District of Virginia

13 F. Supp. 948

WEISS v. MAGNUSSEN.

HAYNES v. SAME.

Nos. 1190, 1215.

District Court, E. D. Virginia, Richmond Division.

February 14, 1936.

Parrish, Butcher & Parrish, of Richmond, Va., for plaintiffs.

Allen & Perkinson, of Richmond, Va., for defendant.

WAY, District Judge (after stating the facts as above).

After further consideration of the motions in these cases, I am of the opinion that they should be overruled.

1. As stated during the oral argument, it seems to me that under a reasonable construction the Virginia statute goes even farther than do some of the statutes which have been held not to violate the Fourteenth Amendment to the Constitution. The Virginia statute provides for the process or notice to be "forthwith sent by registered mail, with registered delivery receipt requested, by the director to the defendant or defendants." Code Supp.Va. 1934, § 2154(70), cl. (i). In other words, the statute makes the sending by the director "to the defendant or defendants" obligatory and the plaintiff does not meet the requirement by showing that anything less than that was done, as, for instance, by showing that the director sent a copy of the summons or notice addressed to the defendant at his last known post office address or to him at the address given when the defendant made application for an automobile license or for a permit to drive or to some address supposed to have been given by him to the foreign state authorities. It must be remembered, too, that the director has no power to compel any automobile owner in another state to sign a return receipt but can only request a return receipt which the statute makes it the duty of the director to do. Therefore, it would seem under the provisions of the Virginia statute, that failure on the part of the plaintiff to furnish the director the correct information to enable him to send the summons or notice "to the defendant or defendants" would prevent the plaintiff from obtaining any valid judgment against the defendants so that the provision in the statute requiring the summons or notice to be sent "to the defendant" rather than sent addressed to the defendant at some particular place is an even more rigid requirement than is ordinarily to be found in such statutes. The requirement for valid service in such cases is stated in the decision of the Supreme Court in Wuchter v. Pizzutti, 276 U.S. 13, at pages 18, 19, 48 S.Ct. 259, 260, 72 L.Ed. 446, 57 A.L.R. 1230, in which it is said:

"The question made in the present case is whether a statute, making the Secretary of State the person to receive the process, must, in order to be valid, contain a provision making it reasonably probable that notice of the service on the Secretary will be communicated to the nonresident defendant who is sued. Chapter 232 of the Laws of 1924 makes no such requirement and we have not been shown any provision in any applicable law of the state of New Jersey requiring such communication. We think that a law with the effect of this one should make a reasonable provision for such probable communication." (Italics supplied.)

If I construe the Virginia statute correctly, it has done something more than make "a reasonable provision for such probable communication." It has definitely required the communication, a copy of the summons or notice, to be "forthwith sent * * * to the defendant or defendants." It would appear to follow, therefore, that failure to comply with that certain and definite provision of the statute cannot result in any valid judgment against the defendant, while compliance with the provision assures that defendant will have ample notice of the suit and an opportunity to have his day in court.

2. With respect to the contention that the statute is invalid because in violation of section 52 of the Constitution of Virginia, as also indicated during the oral argument, my view is that a federal court should be very hesitant to hold unconstitutional a state statute under circumstances such as are here presented, that is to say, on the ground that the challenged statute is violative of the State Constitution. It is the clear...