On motion to strike summons and complaint.
This matter is before us on a motion to strike the summons and complaint on the following grounds:
1. That service of process was insufficient.
2. That this court lacks jurisdiction over the persons of the defendants.
From the pleadings it would appear that the facts in brief are these: the defendant Guerin Special Motor Freight, a corporation of the State of Pennsylvania, by its agent and employee Leonard Mahoney, on December 20, 1951 was delivering foodstuffs to the Great Atlantic and Pacific Tea Company in the City of Trenton and was parked at or near its parking lot adjoining the store in such a manner as to block the sidewalk adjacent to the parking lot. It is further alleged that although the defendant Leonard Mahoney was requested to remove the truck from the sidewalk, so that the plaintiff Mary Chiarello might safely pass by the said place upon the sidewalk, the defendants willfully, deliberately and obstinately refused to remove the truck from its parked position on the sidewalk and as a result thereof the plaintiff Mary Chiarello, while walking around the truck, fell to the ground and was injured. Both defendants are nonresidents and cannot be served with process in this State, and the plaintiffs sought to bring them within the jurisdiction of this court by means of substituted service provided by N.J.S.A.
39:7-2. It would appear that all of the prerequisites of the method of service as required by N.J.S.A. 39:7-3 were met and that the motion is based solely on the contention that N.J.S.A. 39:7-2, as amended, does not make and constitute the Director of Motor Vehicles the agent for the acceptance of process in a civil action arising out of an accident such as is described in the complaint filed in this cause, and therefore this court lacks jurisdiction of the persons of the defendants.
The Motor Vehicles and Traffic Regulation Act, Title 39, chapter 7, section 2, as amended, reads as follows:
"(a) Any person, not being a resident of this State, who shall drive a motor vehicle upon any public highway in this State, whether or not such person shall be licensed to do so in accordance with the laws of this State or of any other State or otherwise; and "(b) Any person or persons, not being a resident or residents of this State or any corporation or association, not incorporated under the laws of this State and not duly authorized to transact business in this State, who by his, their or its agent or servant, shall cause to be driven upon any public highway of this State, any motor vehicle which is not registered in this State to be driven upon the public highways thereof, pursuant to the laws thereof, whether or not the driver thereof shall be licensed to drive a motor vehicle upon the public highways of this State; shall, by the operation of such motor vehicle, or by causing the same to be operated, within this State, make and constitute the Director of the Division of Motor Vehicles in the Department of Law and Public Safety, his or their or its agent for the acceptance of process in any civil action or proceeding, issuing out of any district court, County Court, or other court of civil jurisdiction, against any such person or persons, corporation or association arising out of or by reason of any accident or collision occurring within this State in which any such motor vehicle, so driven or caused to be driven within this State is involved. The operating or causing to be operated of any such motor vehicle within this State shall be the signification of the agreement of such nonresident person * * * corporation or association for whom such motor vehicle is operated, of his, their or its agreement that any such process against him or them or it which is so served shall be of the same legal force and validity as if served upon him or them personally or upon it in accordance with law within this State." (Emphasis ours)
The defendants argue that this nonresident service act has no application to the present case because the motor vehicle
mentioned in the complaint was not involved in an accident within the meaning of the statute and that the accident did not occur upon a public ...