the law of the state in which the service is made for the service of summons or other like process upon any such defendant in an action brought' in the courts of New Jersey. N.J.R.R. 4:4-4(a) provides that service of summons upon an infant over fourteen years of age shall be made in the same manner as provided by F.R.C.P. 4(d)(1). Sandra did not reside nor have her usual place to abode at the place where the Marshal left the copy of the original summons with her father, intended for her; nor was her father her agent authorized to receive service of process. Consequently, the second question must also be answered in the negative.
Turning to the third question, we must look to the provisions of F.R.C.P. 4(e), as amended effective July 1, 1963, for the purpose of determining whether the attempted service of alias summons upon Sandra and Margaret by registered mail was effective to vest this Court with personal jurisdiction over each of them in this action. That subsection of the rule provides, in pertinent part, that 'Whenever a * * * rule of court of the state in which the district court is held provides (1) for service of a summons * * * upon a party not an inhabitant of or found within the state, * * * service may * * * be made under the circumstances and in the manner prescribed in the * * * rule.' N.J.R.R. 4:4-4(j) as recently amended, effective January 2, 1964, provides in pertinent part that 'Whenever it shall appear by affidavit of the attorney for the plaintiff or of any person having knowledge of the facts, that, after diligent inquiry and effort, an individual cannot be served in this State under any of the preceding paragraphs of this rule, then, consistent with due process of law, service may be made by mailing, registered mail, return receipt requested, a copy of the summons and complaint to the individual addressed to his dwelling house or usual place of abode. * * *' The foregoing New Jersey Rule is therefore, by the provisions of F.R.C.P. 4(e), in effect a rule of this Court, and the service on Margaret and Sandra was valid if it was valid under the provisions of the New Jersey rule.
The conditions of N.J.R.R. 4:4-4(j) were strictly complied with in the present case: the appropriate affidavit was filed by an associate of the plaintiffs' attorney; the copies of the summons and complaint were mailed to Margaret and Sandra Wright by registered mail; and the receipts constitute evidence that the copies were actually received by both addressees. No judicial decision interpretive of the foregoing quoted portions of the amended New Jersey Rule has been disclosed either by counsel or the Court's own research. Finding that the manner of service required by the Rule was complied with in the present case, we must determine then only whether such service was in this case 'consistent with due process of law' as required by the Rule.
The issue is whether, on the facts of the particular case, substituted service on a non-resident defendant is valid under due process of law, not whether the amended Rule itself or the method of service provided therein are consistent with due process.
The phrase 'consistent with due process of law' in N.J.R.R. 4:4-4(j) was apparently intended to measure the extent to which, in each case, service can be made pursuant to that Rule. The purpose of the use of that phrase was to give the New Jersey courts (and, by F.R.C.P. 4(e), the Federal courts sitting in this District) the power to '* * * claim every variety of in personam authority over non-resident individuals which the United States Supreme Court will not reject as an excess of constitutional due process,' Schnitzer and Wildstein, New Jersey Rules Service, Special Release No. 4-1963, p. 19.
The amended Rule must be read, then, as if its language had specifically provided for service by mail in the particular factual situation of each case to which the Rule is applied. Thus, in this case, the Rule must be read as if it had said that the prescribed method of substituted service could vest the court with personal jurisdiction over a non-resident person who, while a resident of New Jersey, committed a tortious act by means of a boat which he was operating on the waters of a lake in New Jersey. If the language of the Rule had read this way and if such a Rule were valid under the Due Process clause of the Fourteenth Amendment, then service under that Rule would give the court personal jurisdiction of such a non-resident individual.
Although the personal jurisdiction of a court was traditionally limited to those persons who were actually present within the court's jurisdiction, Pennoyer v. Neff, 1877, 95 U.S. 714, 24 L. Ed. 565, the Supreme Court has held that, with respect to a foreign corporation, '* * * due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice," International Shoe Co. v. Washington etc., 1945, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95. And see McGee v. International Life Insurance Co., 1957, 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223; Hanson v. Denckla, 1958, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283. With the exception of statutes giving a state personal jurisdiction over non-resident motorists for causes of action arising out of their operation of motor vehicles within the state, the Supreme Court has not decided the validity, under the due process clause, of a court's assertion of personal jurisdiction over an individual, who was not present in the court's jurisdiction, solely on the basis of his commission of a tortious act within that jurisdiction where he resided at the time of the act. See Annotation, 'State's power to subject nonresident individual, other than a motorist, to jurisdiction of its courts in action for tort committed within state,' 78 A.L.R.2d 397 (1961).
Several decisions of State and lower Federal courts have, however, upheld the validity, as due process, of the assertion of such jurisdiction. In Bluff Creek Oil Co. v. Green, 5 Cir. 1958, 257 F.2d 83, the court upheld the validity, under the due process clause, of an Illinois statute which provided that any person, whether or not a resident, submitted to the jurisdiction of the courts of Illinois by, inter alia, committing a tortious act within that state. Pursuant to that statute, substituted service on a foreign corporation, whose agent had allegedly made misrepresentations to the plaintiff in contract negotiations which had taken place in Illinois, was upheld. Similarly, in Nelson v. Miller, 1957, 11 Ill.2d 378, 143 N.E.2d 673, the same provision of the Illinois statute was held valid in giving the Illinois courts personal jurisdiction over a nonresident individual for an allegedly negligent act which occurred within the state; and in Frase v. Columbia Transportation Co., D.C.Ill.1957, 158 F.Supp. 858, an Illinois statute, making the use and operation by any person of a motor-craft in the waters of that state a basis for substituted service, was upheld under the due process clause.
Owens v. Superior Court of Los Angeles County, 1959, 52 Cal.2d 822, 345 P.2d 921, 78 A.L.R.2d 388, is very close to the present case. There the California statute, as construed by the California Supreme Court, provided that the state's courts have personal jurisdiction over non-resident individuals to the extent constitutionally permissible, so long as, inter alia, the individuals were residents of the state when the cause of action arose. The defendant in Owens had been a resident of California when his dog had injured the plaintiff there, and the California Supreme Court held that, on those facts, the exercise of personal jurisdiction over the defendant, then a resident of Arizona, was valid under the due process clause.
In the present case, the claim is based on the allegedly tortious act committed by Sandra and imputable to Margaret Wright. The act consisted of the allegedly negligent use and operation of a motor boat by Sandra on the waters of a lake in the State of New Jersey, which negligence caused plaintiffs to suffer personal injuries and other damages. The motor boat in question was owned by Margaret and Jack Wright, operated and kept by them on the same lake, and was allegedly operated in this instance by Sandra, with their permission. From May of 1961, two months before the alleged tortious act, through the end of July of 1963 (several days after the complaint was filed), Sandra and Margaret were bona fide residents of New Jersey, living in the household of the co-defendant Jack Wright.
In light of the Bluff Creek Oil, Nelson, Frase and Owens decisions, supra, the foregoing facts demonstrate that Sandra and Margaret had sufficient contacts with New Jersey so that the assertion of personal jurisdiction over them by substituted service, even though they are now non-residents, does not deny them due process. Having enjoyed the benefits of residence here, including the use of this State's recreational facilities, it is fair and just to make them subject to the jurisdiction of this state's courts in connection with any claim which arose out of their enjoyment of those benefits. Their long residence in this State, terminated only by the fortuitous event of the separation (shortly after the complaint was filed), makes it less inconvenient for them to respond here, to claims arising out of their action here, than for the plaintiffs, residents of New York City, to bring their action in Pennsylvania, having in mind that the co-defendants Sarlitt in this case are residents of New Jersey. The contacts of Sandra and Margaret make it reasonable to require them to respond to any such claims in this State. Cf. International Shoe Co. v. Washington etc., supra, 326 U.S. p. 317, 66 S. Ct. 154, 90 L. Ed. 95.
Consequently, on the facts of this case, the assertion of personal jurisdiction by a New Jersey court over Sandra and Margaret, as a result of a boating accident allegedly caused by them while residents here, would be 'consistent with due process of law' under the Fourteenth Amendment. They therefore could be brought within the jurisdiction of this court by service by registered mail by virtue of N.J.R.R. 4:4-4(j) which is made a rule of this court by F.R.C.P. 4(e). Thus, the service on them, by registered mail, of copies of the summons and complaint (which they concededly received) brought them personally within the jurisdiction of this Court. That service came within and complied with F.R.C.P. 4(e). The third question must be answered in the affirmative, and the motion of Sandra and Margaret Wright to quash service on them must be denied.
Having found personal jurisdiction over the defendants Sandra and Margaret Wright, they will be accorded thirty days from the date of service upon them, by registered mail, of a true copy of the order to be entered upon this opinion, within which to file answer or otherwise move with respect to the complaint herein.
An appropriate order may be submitted.