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Cooke v. Yarrington

Decided: January 22, 1973.

BERNICE COOKE, PLAINTIFF-APPELLANT,
v.
THOMAS S. YARRINGTON AND MICHAEL COOKE, DEFENDANTS-RESPONDENTS. MICHAEL K. COOKE, PLAINTIFF-APPELLANT, V. THOMAS S. YARRINGTON, DEFENDANT-RESPONDENT



For reversal and remandment -- Chief Justice Weintraub, Justices Jacobs, Hall and Mountain, and Judges Sullivan and Lewis. For modification -- Judge Conford. The opinion of the Court was delivered by Weintraub, C.J. Conford, P.J.A.D., Temporarily Assigned (dissenting).

Weintraub

[62 NJ Page 125] These actions were dismissed as to defendant Yarrington on the ground that the court lacked jurisdiction of him. The Appellate Division affirmed in an unreported opinion and we granted certification. 60 N.J. 513 (1972).

The actions arose out of a two-car collision in Pennsylvania on August 10, 1968. Michael Cooke was the driver of one car and his wife was his passenger. Yarrington was the driver of the other car. The Cookes lived and still live in Pennsylvania. Yarrington was then a resident of New Jersey.

The Cookes could have obtained service upon Yarrington in a Pennsylvania action under the nonresident motorist's statute of that State. For reasons which do not appear, they elected to sue here. They instituted separate actions (Mr. Cooke is codefendant in Mrs. Cooke's suit) on July 31, 1970, just short of the expiration of our two-year period of limitations. When Yarrington filed his answers after the expiration of the two-year period, plaintiffs learned that he had moved to New York before suit and that he challenged the service upon him made by leaving the suit papers with his mother at her home in New Jersey. We are told that plaintiffs then sued in New York, but failed when it was held under a borrowing statute that the Pennsylvania two-year statute was a bar.

When Yarrington's motion to set aside service and to dismiss the suit revealed he was not a member of his parents' household at the time service was attempted there, the Cooke's served Yarrington at his New York address by certified mail under Rule 4:4-4(e) which permits such service if "consistent with due process of law." See Avdel Corp. v. Mercure, 58 N.J. 264, 268, 277 A.2d 207 (1971).

The service attempted at the parents' home is conceded to be insufficient. Hence the question as to service is whether service by mail was "consistent with due process of law." This turns upon the sufficiency of the New Jersey contacts to support an exercise of the judicial power of this State under the decisions of the United States Supreme Court, discussed in J.W. Sparks & Co. v. Gallos, 47 N.J. 295, 220 A.2d 673 (1966).

The critical facts, supplied largely by the affidavits submitted by Yarrington on his motion, are these: At the time of the automobile accident (August 10, 1968), he was operating

an automobile owned by his father and registered in New Jersey and was doing so under a driver's license issued in New Jersey. Defendant then lived with his parents in Kenvil, New Jersey. On June 6, 1969, after graduation from Stevens Institute of Technology in Hoboken, New Jersey, defendant took employment in Binghamton, New York, and has since resided near that city. He was married on August 16, 1969. He states that "Since moving to the State of New York, it has been my continuous intention to remain a resident of New York State and to be subject to its laws." He became a licensed driver in New York in March 1970, and was not thereafter licensed in New Jersey. He states that as of July 31, 1970, the date this suit was instituted, and since then, his only contacts with New Jersey consist of visits on the average of once every two months with his parents at Kenvil, New Jersey, and with his wife's parents at Sparta, New Jersey; telephone calls to his parents' home once every two weeks; weekly letters to them; and monthly remittances to a bank in Jersey City, New Jersey, which holds a note he gave for a student loan.

As we noted earlier, the motion was not only to set aside the service of process but also to dismiss the suit. At the oral argument, the trial court raised the question whether in any event the suits should be permitted to remain to the end that service might be attempted upon defendant on one of the periodic visits to this State. No mention was made of that possible disposition in the opinion the trial court later filed. Jurisdiction of a nonresident may be acquired by personal service upon him in this State. MacKay v. Avison, 82 N.J. Super. 92, 96 (App. Div. 1964); 62 Am. Jur. 2 d, Process, ยง 50, p. 832. Having found that service by mail in New York was inadequate, the trial court should have permitted the suits to remain on the chance that jurisdiction of defendant by personal service might be obtained. Colon v. Pennsylvania Greyhound Lines, Inc., 27 N.J. Super. 280 (Law Div. 1953); Goldenberg v. Sibersky, 30 N.J. Super. 596 (Cty. Ct. 1954); Jones v. Denmark, 259 So. 2 d 198, 200

n. 1 (Fla. Ct. App. 1972); Hellman v. Ladd, 315 Mich. 150, 23 N.W. 2 d 244 (Sup. Ct. 1946); Nicolosi v. Fittin, 434 Pa. 133, 252 A. 2 d 700 (Sup. Ct. 1969); Salay v. Braun, 427 Pa. 480, 235 A. 2 d 368 (Sup Ct. 1967); see Fitzgerald and Mallory Construction Co. v. Fitzgerald, 137 U.S. 98, 11 S. Ct. 36, 34 L. Ed. 608, 611 (1890). There is no reason to doubt the good faith of the plaintiffs, who evidently assumed, and reasonably so, that defendant's residence in New Jersey had continued. The suits having been instituted within the statutory period of limitations by the filing of the complaints, R. 4:2-2, it would be unjust to dismiss and thus deny plaintiffs an opportunity to seek a trial of the merits. See X-L Liquors, Inc. v. Taylor, 17 N.J. 444, 454 (1955). We would modify the judgments accordingly if we felt obliged to find that jurisdiction of defendant was not acquired by the service by mail in New York, but for the reasons which follow, we think jurisdiction was obtained by that process.

International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), held that a State court may take jurisdiction of a controversy by appropriate notice to a nonresident if the underlying transaction had "minimal contacts" with the State. A more expansive view of State jurisdiction of the person was demanded by the reality that as interstate movements and transactions became commonplace State lines became less relevant to the resolution of ensuing controversies. The minimal contacts formula is imprecise and necessarily so. The ...


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