Sorenson v. Stowers , 251 Wis. 398 ( 1947 )

^* Motion for rehearing denied, with $25 costs, in one case only, on January 13, 1948. Plaintiff and appellant La Marr Sorenson and plaintiff and appellant Pearl Sorenson commenced separate actions against Charles Stowers and Milwaukee Automobile Insurance Company, Limited, defendants and appellants, and George W. Emmert, defendant and respondent, to recover damages for personal injuries suffered by reason of a collision of cars driven by the defendants Emmert and Stowers and the Sorenson car. The collision occurred August 6, 1939, on a public highway in Milwaukee county, and action was commenced August 4, 1941. Defendant Emmert appeared specially in all proceedings in the trial court and moved to set aside and vacate the service of summons and complaint for the reason that plaintiffs failed to comply with the statute under which it was attempted to obtain the service relied upon, defendant Emmert being a nonresident of the state. The trial court, after hearing, ordered the purported service on the defendant Emmert in each action be set aside and both actions be dismissed as to him. Plaintiff La Marr Sorenson appeals from the order entered in the action in which he is plaintiff, and Pearl Sorenson appeals from the order entered in the action in which she is plaintiff, and defendants Charles Stowers and Milwaukee Automobile Insurance Company, Limited, appeal from both orders.

An accident report was made to the Milwaukee county sheriff's department as required by law, which report gave the address of George W. Emmert as "Warren, Michigan," and a supplementary report of the officer investigating the collision gave the same information. It is undisputed that Emmert's address and residence at that time was Warren, Michigan. In the fall of 1939 he disposed of his business there and entered into business in Chicago, having business and residence addresses which were listed in the Chicago directories at all times after he moved to Chicago. His affidavit states that before leaving Warren, Michigan, in the fall of 1939, he left a forwarding address with the United States postal department, which was never countermanded or changed. Mail addressed to him at Warren, Michigan, was at times delivered to his successor in business there. During the month of April, 1941, plaintiffs' Chicago counsel wrote a letter to defendant Emmert and addressed it to him at Warren, Michigan, which letter was returned with the envelope opened, containing a slip stating "Opened by mistake." This was placed in an envelope with the name "George W. Emmert, Warren, Michigan," on the back of it, which envelope was addressed to the office of the Chicago attorneys who wrote the letter to Emmert.

On or about August 2, 1941, plaintiffs' claims were placed in the hands of Milwaukee attorneys by their Chicago counsel. Suit papers were prepared and forwarded to the commissioner of motor vehicles on August 4, 1941, and copies were prepared and mailed to defendant Emmert on August 5, 1941, by registered mail, addressed to him at Warren, Michigan. The envelope containing the suit papers was returned to the senders with the stamp thereon by the Warren, Michigan, post office showing delivery was not made for the reason that delivery was refused and the further reason that the addressee had moved and left no address. The question presented is whether proper service has been made on defendant Emmert under sec. 85.05(3), Stats. It is undisputed that defendant Emmert was a nonresident. The collision from which damages are claimed occurred in Wisconsin, and service was properly made upon the commissioner of the motor vehicle department of the state of Wisconsin by filing a copy of the summons and complaint in his office, together with a fee of $2.

Sec. 85.05 (3), Stats., after providing for service on the commissioner of the motor vehicle department, provides that notice of such service and a copy of the process shall, within ten days thereafter, be sent by mail by the plaintiff to the defendant, at his last-known address. Appellants contend this was complied with by mailing a notice of such service and copy of the process to the defendant Emmert at Warren, Michigan. The trial court held that appellants failed to comply with the statute by not mailing the notice of service and copy of process to respondent's Chicago address, relying on State ex rel.Cronkhite v. Belden (1927), 193 Wis. 145, 158,211 N.W. 916, 214 N.W. 460, wherein it is said:

"This must mean not his last address known to the plaintiff, but plaintiff is required to ascertain at his peril the last-known address of the defendant as a matter of fact, and his failure to do so will amount to a failure to comply with the statute and render the service invalid."

In the cases of Wuchter v. Pizzutti, 276 U.S. 13,48 Sup. Ct. 259, 72 L. Ed. 446, and Hess v. Pawloski, 274 U.S. 352,47 Sup. Ct. 632, 71 L. Ed. 1091, and cases there cited, it is held the well-established rule is that actual notice to a nonresident defendant in automobile damage actions is not essential to due process. The general trend of authorities is to sustain the validity of service of process if the statutory provisions in themselves indicate there is a reasonable probability that if the statute is complied with defendant will receive actual service. In Hendershot v. Ferkel, 144 Ohio, 112,56 N.E.2d 205, under a statute similar to sec. 85.05 (3), Stats., where the defendant had not received the suit papers, the court held that by complying with the statute proper service had been made.

Under sec. 770, United States postal regulations, "unlimited request for the forwarding of mail to other post offices shall be observed up to a period of two years unless revoked; except that such request affecting general-delivery mail at city delivery post offices shall expire at the end of thirty days unless renewed." If the provision of the statute trader consideration is to have any force and effect, plaintiffs cannot be charged with responsibility to see that the postal department makes delivery of mail properly addressed. If the defendant had continued to live in Warren and the postal department had failed to make delivery of the letter, or the letter had been lost in the mail, defendant could not be heard to say that plaintiffs had failed to make proper service. It naturally follows that where defendant left a forwarding address, which is undisputed, if the postal department failed to forward the mail as directed within the period during which the forwarding order was effective, the same rule must apply. Plaintiffs had a right to rely upon the address given to the proper public authority at the time of the accident. If inquiry had been made of the postal authorities at Warren, Michigan, under the postal regulations they would not have been permitted to furnish the plaintiffs with the new address of defendant. To hold that a person may move from a known address to some other address and require the plaintiffs to obtain this new address wherever it may be in order to begin an action could well avoid the entire purpose of the statute. Warren, Michigan, was the last-known address of the defendant Emmert by these plaintiffs or their attorneys. The only claim made by defendant Emmert is that they failed to make proper effort to ascertain his changed address, thus depriving him of notice that the action had been commenced and an opportunity to defend unless he received this information through some other source. which he did in this instance. No claim is made that plaintiffs had knowledge of any later address of the defendant than the one which was used. The legislature provided the manner of service in this type of action. Plaintiffs complied with it in good faith — nothing more was required. So far as it is inconsistent with the foregoing, State ex rel. Cronkhite v.Belden, supra, is overruled.

The letter containing the notice of service and copy of process was registered and a return receipt requested. The names of the attorneys and their address is printed on the envelope but there is no return request on the envelope. Respondent contends this does not comply with that part of the statute which provides the notice shall be "sent by mail." It is argued the words "sent by mail" mean regular mail and not registered mail, because the regulations relative to delivery are different. The only postal regulation considered important here is sec. 1328 which provides "written orders to forward mail shall be considered to apply to both ordinary and registered mail unless the contrary is specifically stated." Respondent having left a forwarding address with the postal authorities at Warren, Michigan, the same regulation as to forwarding applied whether this letter was sent by regular mail or registered mail. The legislature did not provide any particular form of mailing. In some states having a similar statute, provision is made for sending the notice of service and copy of process by registered mail. Registered mail is considered the safer way to insure delivery, whether this be true or not. Respondent was in no way harmed by the manner of mailing as were parties in cases relied upon by respondent. While this particular question was not squarely before the court in State ex rel. Nelson v. Grimm (1935), 219 Wis. 630,263 N.W. 583, it was there held that a letter sent by registered mail to defendant and receipted for by his agent constituted good service under the statute. It is considered that mailing by regular mail or registered mail complies with the statute in question. A return request on the envelope is not involved here, and we do not pass on this question.

By the Court. — Orders reversed, and causes remanded with directions to deny defendant Emmert's motions.