O'Tier v. Sell

The complaint alleges that the plaintiff was injured in the county of Onondaga, State of New York, in a collision with an automobile owned by the defendant Sell and operated by Karl R. Trevor, an employee of the H.H. Franklin Manufacturing Company. The defendant Sell is a resident of Pennsylvania. In an action against a non-resident "growing out of any accident or collision in which such non-resident may be involved while operating a motor vehicle" on a public highway, the summons may be served in accordance with the provisions of section 285-a of the Highway Law (now section 52 of the Vehicle and Traffic Law; Cons. Laws, ch. 71) by leaving a copy with the Secretary of State. The plaintiff served the summons and complaint in that manner, and the defendant Sell moved to set aside that service on the ground that he was not "operating" the motor vehicle at the time of the accident.

It appears from the affidavits submitted upon the motion that Sell, an employee of the Franklin Company, drove his automobile to Syracuse to attend a convention of the employees of the company. While there Sell took his car to the factory of the Franklin Company and stated that he was having some trouble with the car. Trevor and Sell drove the car for an hour and a half; then Sell left the car at the factory with Trevor and Trevor stated "that he would proceed immediately to find out what the trouble with said automobile was and repair the same and that he would report to Walter Sell." The accident occurred the next day while Trevor was driving the car for the purpose of finding the "trouble." Sell was not at that time in the car.

Under the common law of this State the owner of a motor vehicle was responsible for injuries caused by his own negligence or the negligence of his agent in the operation of the vehicle. If the automobile was not being operated by the owner personally or through an agent, the owner was not responsible for the negligence of the operator. Section 282-e of the Highway Law (now section 59 of the Vehicle and Traffic Law) extended the owner's responsibility to include negligence of a third party who operated a motor vehicle with the owner's permission. Perhaps under the new statute the defendant Sell is responsible for the negligence of the operator of the car at the time of the accident. The operator was not Sell's agent, but we assume for the present, without considering the correctness of the assumption, that Trevor was then operating the car with Sell's permission within the meaning of the statute. In order to enforce the statutory liability, personal service within the State must be made upon the defendant Sell, unless the statute otherwise provides. The statute does provide for constructive service upon a non-resident in an action "growing out of any accident or collision in which such nonresident may be involved" while operating a motor car. We are asked by construction to read into the words "while operating a motor vehicle" an additional clause "or while the car is being operated with his permission, express or implied." That we may not do.

We have said that "the word ``operate' is used throughout the statute [Highway Law] as signifying a personal act in working the mechanism of the car. The driver operates the car for the owner, but the owner does not operate the car unless he drives it himself. If the meaning were extended to include an owner acting either by himself or by agents or employees, the provisions of the Highway Law would be replete with repetitious jargon." (Witherstine v. Employers Liability Assur. Corp., 235 N.Y. 168.) In that case construction of the statute was merely ancillary to construction of an insurance policy. Section 285-a was not at that time part of the statute, but what the court then said must have indicated to the Legislature the significance which the court would probably attach to the use of the word "operate" in any amendment to the statute.

We do not overlook the fact that in the meanwhile the Legislature by section 282-e of the Highway Law had enlarged the responsibility of the owner of a motor vehicle to cover injuries caused by the negligence of a person operating the vehicle with the owner's permission. In that section certainly the Legislature used the word "operate" as signifying "a personal act." If the Legislature had intended that operation with the permission of a non-resident owner of a motor vehicle on a public highway shall subject the non-resident to suit without personal service within the State, it could have used apt language to indicate its purpose. It has not done so. On the contrary, it has used language which excludes such a construction. If its language is construed in accordance with its ordinary significance, the statute is not unconstitutional. (Hess v. Palowski,274 U.S. 352.) We are not called upon to determine whether it would be constitutional if given other construction.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division. The questions certified should be answered in the negative.

POUND, CRANE, KELLOGG, O'BRIEN and HUBBS, JJ., concur; CARDOZO, Ch. J., not sitting.

Ordered accordingly.