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Ferraro v. Ferro Trucking Co.

Decided: February 14, 1962.

ANTHONY FERRARO, PLAINTIFF,
v.
FERRO TRUCKING CO., INC., A CORPORATION, DEFENDANT



Pindar, J.s.c.

Pindar

[72 NJSuper Page 520] This is a motion to dismiss count 1 of the complaint, involving a personal injury action arising out of a motor vehicle accident which occurred in New Jersey on June 25, 1958. Both plaintiff and defendant

are residents of New York. Plaintiff alleges that his injuries were caused by the negligent operation of a vehicle owned by defendant and driven by its agent. Defendant, being a foreign corporation not duly authorized to transact business in New Jersey, was personally served on March 3, 1961 through the Director of Motor Vehicles in accordance with R.S. 39:7-1 et seq.

Defendant now makes this motion predicated on the ground that the personal injury claim is barred by the statute of limitations (N.J.S. 2A:14-2) since the action was not commenced within the required two-year period. Plaintiff does not dispute this latter fact but urges that under the provisions of N.J.S. 2A:14-22 the statute of limitations is tolled and the aforementioned limitation not controlling. Defendant contends that the tolling of the statute is for the benefit of residents only and therefore not available to this plaintiff.

The questioned tolling statute, as amended, states:

"If any person against whom there is any of the causes of action specified in sections 2A:14-1 to 2A:14-5 and 2A:14-8, or if any surety against whom there is a cause of action specified in any of the sections of article 2 of this chapter, is not a resident of this state when such cause of action accrues, or removes from this state after the accrual thereof and before the expiration of the times limited in said sections, or if any corporation or corporate surety not organized under the laws of this state, against whom there is such a cause of action, is not represented in this state by any person or officer upon whom summons or other original process may be served, when such cause of action accrues or at any time before the expiration of the times so limited, the time or times during which such person or surety is not residing within this state or such corporation or corporate surety is not so represented within this state shall not be computed as part of the periods of time within which such action is required to be commenced by the section. The person entitled to any such action may commence the same after the accrual of the cause therefor, within the period of time limited therefor by said section, exclusive of such time or times of nonresidence or nonrepresentation." (Emphasis added)

In using the highways of this State defendant corporation impliedly consented to make the Director of Motor

Vehicles "its 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, so driven or caused to be driven within this State is involved." N.J.S.A. 39:7-2(b) is more fully set forth as follows:

" 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." (Emphasis added)

Specifically, plaintiff argues that defendant corporation "is not represented in this State by any person or officer upon whom summons or other original process may be served," and therefore N.J.S. 2A:14-22 is applicable. He urges that "any person or officer" is limited here to a general agent upon whom process may be served in any and every cause of action arising against defendant, as opposed to the statutory agency authorization established under R.S. 39:7-1 et seq.

In support plaintiff cites Whalen v. Young , 28 N.J. Super. 543 (Law Div. 1953), reversed on other grounds 15 N.J. 321 (1954); Gotheiner v. Lenihan , 20 N.J. Misc. 119, 25 A. 2 d 430 (Sup. Ct. 1942); ...


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