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Lindsey v. Teddy''s Frosted Foods Inc.

Decided: March 14, 1955.

WILLIAM LINDSEY, PLAINTIFF-RESPONDENT,
v.
TEDDY'S FROSTED FOODS, INC., AND SALVATORE SCIRIMMANO, DEFENDANTS-APPELLANTS



On appeal certified by this Court on its own motion while pending in the Appellate Division of the Superior Court.

For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Vanderbilt, C.J.

Vanderbilt

The defendants appeal from an interlocutory order of the Morris County District Court denying their motion to set aside the service of the summons on them and to dismiss the complaint. We certified the appeal on our own motion while it was pending in the Appellate Division of the Superior Court.

On January 20, 1954 the plaintiff, who was employed as a truck driver and delivery man, had driven a truck of his employer onto that part of the property of the Grand Union Store in Hackettstown where deliveries were made to the store and was unloading merchandise from the truck with the aid of the store's conveyor belt. The defendant Scirimmano, who likewise drove a truck of his employer, the defendant Teddy's Frosted Foods, Inc., for the purpose of making deliveries to the store, became annoyed at the delay occasioned by the plaintiff's use of the conveyor belt and, according to the affidavit of the plaintiff, climbed out of his truck and onto the truck where the plaintiff was unloading merchandise and struck the plaintiff, causing a concussion of the brain and a lacerated scalp.

The plaintiff brought this action against the defendant Scirimmano individually and against the corporate defendant under the doctrine of respondeat superior. The defendants filed an answer on the merits, in which they also alleged that service of the summons upon them through the Director of the Division of Motor Vehicles of the State of New Jersey was invalid. Prior to trial they moved to set aside the service and dismiss the complaint, supporting the motion with an affidavit by the individual defendant reciting the above facts and then concluding:

"Any alleged injuries suffered by the plaintiff were as a result of said altercation and fisticuffs and not arising out of or by reason of any accident or collision occurring within the State of New Jersey in which the motor truck driven by me and owned by my employer, Teddy's Frosted Foods, Inc. was involved while being driven in the State of New Jersey.

As recited hereinabove, the altercation and fisticuffs and any alleged injuries suffered by the plaintiff resulting therefrom were in no wise connected with the ownership or operation of the aforementioned motor truck."

The trial court denied the motion and the defendants appeal under R.R. 2:2-3(a)(3), which provides that appeals may be taken from orders, whether or not interlocutory, determining that the court has jurisdiction over the subject matter or person.

N.J.S.A. 39:7-2(b) of the Motor Vehicle Act provides:

"Any person or persons, not being a resident or residents of this State or any corporation * * * not incorporated under the laws of this State * * * who, by * * * their * * * agent * * * shall cause to be driven upon any public highway of this State, any motor vehicle which is not registered in this State * * * shall * * * make and constitute the Director of the Division of Motor Vehicles * * * their * * * agent for the acceptance of process in any civil action * * * arising out of or by reason of any accident or collision occurring within this State in which any such motor vehicle * * * 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 operating the same, or of such * * * corporation * * * for whom such motor vehicle is operated * * * of his [or] their * * * agreement that any such process * * * so served shall be of the same legal force and validity as if served * * * personally * * * in accordance with law within this State." (Italics supplied.)

The simple question before us is whether the cause of action pleaded by the plaintiff comes within the scope of the quoted statute so as to sustain the service of process under it.

Obviously there is lacking here "any accident or collision * * * in which any such motor vehicle * * * is involved." The truck of the defendants was parked to one side and the defendant Scirimmano was not even in it at the time of the incident complained of by the plaintiff. The fact that the truck brought the defendant to the place has no more to do with the individual defendant's misconduct than it would if he had parked his truck and gone to a ...


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