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Austin v. Millard

Decided: December 11, 1978.

DONALD AUSTIN, INDIVIDUALLY AND AS GUARDIAN AD LITEM OF MARY LOU AUSTIN, A MINOR, PLAINTIFFS-APPELLANTS,
v.
THEODORE T. MILLARD; ELLSWORTH R. HAVER; DOROTHY C. HAVER, AND JOHN DOE (NAME BEING FICTITIOUS -- CORRECT NAME UNKNOWN), DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Middlesex County.

Lynch and Horn.

Per Curiam

[164 NJSuper Page 220] The issue raised in this appeal is the propriety of the trial court's denial of plaintiffs'*fn1 application to serve one substantially unidentified as the driver of an automobile involved in a collision with a motorcycle by means of substituted service upon the liability carrier for the automobile.

Certain pertinent facts are not in dispute. On August 21, 1977 the infant plaintiff, Mary Lou Austin, was a passenger on a motorcycle operated by Theodore T. Millard in Spring Lake, New Jersey. The motorcycle collided with an automobile which, according to the Spring Lake police, was being driven by Ellsworth R. Haver and owned by Haver's wife, Dorothy C. Haver.

On September 14, 1977 the instant suit was commenced by plaintiffs against Millard and the Havers for personal injuries and consequential damages allegedly sustained by plaintiffs. The answers to plaintiffs' interrogatories brought to plaintiffs' attention that Ellsworth R. Haver was contending that at the time of the accident his wife's automobile was being driven by one "Anatole" and Ellsworth was a passenger. With the answers to the interrogatories the Havers supplied a copy of a letter which Ellsworth wrote to the Manasquan Police Department (Manasquan is a municipality close by to Spring Lake), in which he recounted his version of the accident. In the letter he stated that Anatole was an automobile mechanic whom he had met through acquaintances shortly before the accident; that Anatole was driving the vehicle and Ellsworth was a passenger; that after the accident Anatole drove away, ostensibly to take the injured Ellsworth to a hospital, but instead of taking him to the hospital Anatole abandoned the car and Ellsworth at some distance from the accident scene, and that Ellsworth thereafter tried to find him on information that Anatole was from the Trenton area and was believed to work there for an automobile dealer. Ellsworth also stated that he did not know whether "Anatole" was the driver's first or last name.

On May 11, 1978 plaintiffs applied to the trial court for an order permitting them to amend their complaint to add "John Doe" as a party defendant and to authorize service of a summons and the amended complaint upon respondent in this appeal, Allstate Insurance Company (Allstate), which insured the Haver vehicle at the time of the accident. On May 11, 1978 the trial judge granted leave to plaintiffs to

name "John Doe" as an additional defendant, but without expressing any reasons for his action the judge denied leave to make substituted service on John Doe through service of process on Allstate. We granted leave to plaintiffs to appeal from that negative interlocutory order.

At the outset, it may be noted that neither Allstate nor plaintiffs appear to accept as fact that one other than Ellsworth was driving the automobile. Skepticism as to this fact is indicated in both briefs.

The controlling authority for decision of the issue before us is Feuchtbaum v. Constantini , 59 N.J. 167 (1971). There the court held that in an automobile collision case where the driver of a vehicle was a New Jersey resident who could not be found for the service of process upon him, such service could be made upon the automobile liability carrier (per R. 4:4-4[i]) without violating rules of due process. In arriving at this conclusion the court invoked a balancing test, weighing four factors: "the plaintiff's need, the public interest, the reasonableness of plaintiff's efforts under all the circumstances to inform the defendant, and the availability of other safeguards for the defendant's interests." 59 N.J. at 177, citing Dobkin v. Chapman , 21 N.Y. 2d 490, 503, 289 N.Y.S. 2d 161, 172, 236 N.E. 2d 451, 458 (Ct. App. 1968) (a decision also involving substituted service in an automobile-accident case); R. 4:4-4(i). See also, Ledbetter v. Schnur , 107 N.J. Super. 479 (Law Div. 1969), cited with approval in Feuchtbaum, supra.

Allstate primarily argues that the trial court correctly denied plaintiffs' application, because the facts in the instant case fail to meet the Feuchtbaum balancing test. Allstate first reasons that plaintiffs' needs would not be furthered by allowing service on Allstate. It insists that the factfinder could only make one of two possible conclusions in this case: (1) Ellsworth R. Haver was the actual driver of the Havers' automobile at the time of the accident; (2) Anatole was the actual driver of the automobile at the time of the accident, but he was clearly acting as Ellsworth's agent, since

he was employed by Ellsworth. In either case, Allstate asserts, plaintiffs would be able to recover because of the ...


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