For the plaintiff, W. Reading Gebhardt.
For the defendant, Sylvester C. Smith, Jr.
Before Justices Lloyd, Case and Donges.
The opinion of the court was delivered by
CASE, J. Defendant, on special appearance, moves to set aside the service of summons and complaint on the ground that the service is invalid.
Emmett E. Young was a passenger in an automobile which, on July 6th, 1934, collided on a public highway in this state with an automobile owned and driven by D. Ford Henry, Jr. Young was killed instantly. Henry died a few hours later. Both men were non-residents of the State of New Jersey.
Henry had a driver's license and a car registration issued by the State of West Virginia. He was not licensed and his car was not registered by the State of New Jersey. His last will and testament, probated by the register of wills of Allegheny county, Pennsylvania, named Potter Title and Trust Company as executor. That company, a Pennsylvania corporation, without an office or a designated resident agent in New Jersey, duly qualified. Walter T. Young, a resident of Warren county in this state, was appointed administrator ad prosequendum of Young, and as such brought the present action against Henry's executor. Service of summons and complaint was made upon the New Jersey commissioner of motor vehicles, who forthwith sent a notice of such service and a copy of the summons and complaint by registered mail to the defendant executor. In due course the defendant's return receipt was received by the commissioner and notation thereof was endorsed on, and appended to, the summons and complaint.
The issue is whether the attributes of the plaintiff and the defendant are such as to bring the action and the service of process within the purview of chapter 69, Pamph. L. 1930, p. 295. An amendment, chapter 69, Pamph. L. 1933, does not change the provisions now in point. The 1930 enactment is as follows:
"From and after the passage of this act any chauffeur, operator or owner of any motor vehicle, not licensed under the laws of the State of New Jersey providing for the registration and licensing of motor vehicles, who shall accept the privilege extended to non-resident chauffeurs, operators and owners by law of driving such a motor vehicle or of having the same driven or operated in the State of New Jersey, without a New Jersey registration or license, shall, by such acceptance and the operation of such automobile within the State of New Jersey, make and constitute the commissioner of motor vehicles of the State of New Jersey his, her or their agent for the acceptance of process in any civil suit or proceeding by any resident of the State of New Jersey against such chauffeur, operator or the owner of such motor vehicle,
arising out of or by reason of any accident or collision occurring within the State in which a motor vehicle operated by such chauffeur, or operator, or such owner is involved; and the acceptance of the said privilege or the operation of said motor vehicle shall be a signification of his, her or their agreement that any such process against him, her or them which is so served shall be of the same legal force and validity as if served upon him, her or them personally. Service of such process shall be made by leaving the original and a copy of the summons and complaint, with a fee of two dollars, in the hands of the commissioner of motor vehicles of the State of New Jersey, or someone designated by him in his office, and such service shall be sufficient service upon the said non-resident chauffeur, operator or owner; provided, that notice of such service and the copy of the summons and complaint are forthwith sent by registered mail to the defendant by the commissioner of motor vehicles or such person acting for him in his said office, and the defendant's return receipt and the affidavit of the commissioner of motor vehicles or such person in his office acting for him, of the compliance herewith are appended to the said summons and complaint and filed in the office of the clerk of the court wherein the said action may be pending; provided, also, that the date of the said mailing and the date of the receipt of the return card aforesaid are properly endorsed on the said summons and complaint and signed by the said commissioner of motor vehicles or someone acting for him. * * *"
Defendant first contends that inasmuch as plaintiff's decedent was not a resident of this state and none of the ultimate beneficiaries of his estate are residents of the state the action is not within the statutory language "by any resident of the State of New Jersey." Our ...