ADRIAN E. CRETE vs. ANDRE AUDET.

CUTTER, J. On September 26, 1964, Crete was injured while riding as a passenger in an automobile owned by Crete's wife. The automobile "ran off the highway into a telephone pole and overturned." It was then being operated by Audet.

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This action of tort [Note 1] was commenced in the Superior Court by writ dated September 22, 1966.

Service of process was made on the Registrar of Motor Vehicles. [Note 2] Notice of such service was mailed by registered mail to Audet at 28 Prospect Avenue, Hartford, Connecticut. The letter was returned to Crete's counsel marked "no such #." An attorney, purporting to appear specially for Audet, filed (a) a motion to dismiss "for the reasons that there has been no . . . sufficient service of process upon . . . [Audet], a nonresident," and that there has been no compliance with G. L. c. 90, Section 3C; and (b) an answer in abatement asserting that Audet was a nonresident, who had no property in Massachusetts which was attached in this action, that he had not been personally served in Massachusetts, and that there had been no compliance with Section 3C.

It was stipulated that, when the action was commenced, there were on file at the Chelmsford Police Department the following addresses for Audet: (a) R.F.D. # 1, Box 35, Tolland, Connecticut, which appeared on the report, dated September 26, 1964, of the investigating police officer who had obtained the address from Audet's Connecticut operator's license; (b) 12 Chabot Street, Lowell, which appeared on Mrs. Crete's accident report (September 28, 1964) as owner of the vehicle; and (c) 28 Prospect Avenue, Hartford, Connecticut, which appeared on Audet's accident report, dated September 29, 1964. See as to these reports, G. L. c. 90, Section 26, as amended (fn. 6, infra).

It was represented orally at the arguments before us that there was no such address as 12 Chabot Street, Lowell;

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that Audet was a "drifter" who could not be found; and that the appearance for him was by an insurance company, presumably the insurer on Mrs. Crete's liability policy, which had learned of the accident from Crete or his wife. Presumably also, the insurance company was protecting itself with respect to possible liability upon the policy. No other facts have been represented to us or stipulated which tend to explain the unusual situation more fully, or which give further indication whether Audet or the insurance company would in any event be subject to liability arising from the accident.

No evidence, other than the stipulation, was presented to the trial judge. He denied the motion to dismiss and overruled the answer in abatement. He then stayed further proceedings and reported the case for the determination of this court.

General Laws c. 90, Section 3B, [Note 3] provides in effect that a person operating a motor vehicle in this Commonwealth in any place to which the public has a right of access shall be deemed to have appointed the Registrar of Motor Vehicles as his attorney for the service of process. Chapter 90, Section 3C (as amended through St. 1937, c. 387), [Note 4] provides for the method

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of service and of giving notice to defendants in connection with Section 3B. The purpose of this provision, as was said in Nickerson v. Fales, 342 Mass. 194, 199, is "to secure, as nearly as may be, to a non-resident defendant . . . the same opportunity to defend before trial that he would have if personal service had been made upon him in this State."

In the Nickerson case, service had been made on a writ, returnable August 13, 1955, upon the registrar in an action against Rhode Island residents growing out of an accident in Massachusetts. No effort, however, was made by the plaintiff to give any notice to the defendants or to file an affidavit of compliance. On May 14, 1957, the defendants appeared specially and filed a motion to dismiss on the ground that service was invalid (p. 196). Thereafter the plaintiffs obtained orders of notice for service upon the defendants, which were served upon the registrar and copies were dispatched by registered mail to the defendants in Rhode Island. The trial judge denied the motion to dismiss. This court, however, ordered judgment for the defendants. We held that, for jurisdiction over the defendants to attach, Section 3C required (see p. 197) compliance with one of the alternative forms of service provided in the section; that there was clearly no compliance (see p. 198) with the requirement of Section 3C, par. (1), i.e. that notice be given "forthwith" to the defendants by registered mail; and that (pp. 198-200) the failure to give notice "forthwith," as required by Section 3C, could not be cured by an order of notice issued under G. L. c. 223, Section 84, because (p. 199) Section 3C sets "forth an exclusive procedure for giving notice" and "the `forthwith'

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requirement in that section may not be avoided by resort to Section 84." [Note 5]

In the Nickerson case no attempt whatsoever to give notice to the defendants was made for two years. In the present case, immediate effort was made to comply with Section 3C by giving registered mail notice to the address which Audet himself had given in his accident report to the Registrar of Motor Vehicles (with a copy to the Chelmsford Police Department) as required by G. L. c. 90, Section 26 (as amended by St. 1964, c. 405; see most recent later amendment by St. 1965, c. 664). [Note 6] See Lord v. Registrar of Motor Vehicles, 347 Mass. 608. Crete's registered mail notice, however, was not in compliance with c. 90, Section 3C (1). It was sent to the "last address of [Audet] the defendant known to" Crete (see fn. 4, at point [C]) rather than to Audet's "address of record in the office from which . . . [Audet's operator's] license was issued" (see fn. 4, at point [A]). Service of the notice at Audet's last known address was permitted by Section 3C if "the defendant ha[d] no . . . license known to the plaintiff" (see fn. 4, at point [B]). In the event of such service, however, Section 3C required that "proof of actual notice . . . be filed in the case" (see fn. 4, at point [D]).

Crete contends that Audet is estopped to assert that his address was not that given by him in his report required by Section 26. The record does not show that Audet told Crete that he had a license or by what State it was issued. The stipulation does not require the inference that Crete knew what address was shown on Audet's license, if any. Even,

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however, if Crete or his attorney had known the address shown on the operator's license, it might reasonably have been believed that Audet's address shown in his report was a later address. This naturally might have given rise to the assumption that a change of address had been reported to the appropriate Connecticut official. In any event, the address shown on the report was a representation by Audet on which others might be expected to rely and by which they would be likely to be misled.

It, of course, would have been appropriate and possible for Crete to have sent notice of the action to the Tolland address as well as to the address given by Audet in the report under Section 26. Also, counsel might well have verified with the Connecticut Motor Vehicle Department, Conn. G. S. (incl. 1966 supp.) c. 246, Sections 14-10, 14-36, 14-41, 14-42, 14-45, that the Tolland address was that shown for Audet on the Connecticut records. There would then have been no doubt that there had been compliance with Section 3C and that the Superior Court had acquired jurisdiction. We think, however, that there was sufficient representation by Audet that his real address was the Hartford address to which notice was sent, and sufficient tendency for that representation to mislead Crete, so that Audet should not now be heard to argue that Crete did not send notice "forthwith" to the Tolland address, or whatever address appeared on the Connecticut records. [Note 7]

It could be found (a) that failure to get notice "forthwith" to Audet was induced by his own conduct, and (b) that there had been a substantial effort to comply with Section 3C, and not (as in the Nickerson case, 342 Mass. 194) a complete failure for two years to attempt to give any notice required by Section 3C, par. (1). Accordingly, in the circumstances, now that the failure to give actual notice to Audet at Hartford has become apparent, we think that it is

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open to the Superior Court to apply Section 84 for one purpose for which it was intended, the correction of service actually attempted but deficient, and to order new notice (of the writ and of the fact of its service upon the registrar) now to be given to Audet at the Tolland address or at whatever address appears on the Connecticut motor vehicle records. Until such a notice has been duly served, action upon the motion to dismiss and the plea in abatement [Note 8] appropriately should be postponed.

The case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.