Russell v. Holland
| Decision Date | 28 May 1941 |
| Citation | 309 Mass. 187,34 N.E.2d 668 |
| Parties | ROSE RUSSELL v. BERTRAM H. HOLLAND. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 8, 1940.
Present: FIELD, C.
J., DONAHUE LUMMUS, QUA, & DOLAN, JJ.
Motor Vehicle Registration. Practice, Civil, Auditor: findings; Exceptions general exception. Residence. Words, "Residence."
A jury hearing a case upon the report of an auditor whose findings were not final and upon other evidence, while required to accept as true subsidiary findings by the auditor not contradicted by other evidence, is not obliged to accept his conclusions therefrom where other conclusions are warranted.
A conclusion that a woman living in another State had a residence with her son here sufficient for the purposes of registering an automobile under
G. L. (Ter.
Ed.) c. 90, Section 2, was warranted by findings, among others, that she occupied a room fitted with her furniture in her son's house where she visited him regularly and for substantial periods, and kept her automobile, which she could not operate, at her son's house.
The giving, as the mailing address of the registrant of an automobile, of a residence which he had in this Commonwealth for purposes of registration of the automobile under G. L. (Ter. Ed.) c. 90, Section 2, did not as a matter of law render the registration invalid although his domicil was in another State, where a finding was warranted that, by use of the address given instead of that of his domicil, the identity of the automobile and its owner could be determined more readily by persons interested.
A general exception to a lengthy portion of a charge to a jury "having to do with a certain subject," without specification of particular passages deemed objectionable, was overruled.
TORT. Writ in the First District Court of Southern Middlesex dated April 9, 1936.
On removal to the Superior Court, the case was tried before Swift, J., and there was a verdict for the plaintiff in the sum of $94.
R. E. Kempton, (B.
H. Stoodley with him,) for the defendant.
No argument nor brief for the plaintiff.
An automobile, owned by the plaintiff and operated by her son was in collision on March 25, 1936, on a public highway in Holliston, with an automobile owned and operated by the defendant. The plaintiff brings this action to recover for resultant damage to her automobile.
The case was tried in the Superior Court and a jury returned a verdict for the plaintiff. It is now agreed that a finding was warranted that the defendant operated his automobile in a negligent manner, and that a finding that he was grossly negligent was not warranted. It is not now contended that the plaintiff's son was negligent in the manner in which he operated the plaintiff's automobile. The contention of the defendant is that the plaintiff's automobile was not at the time of the collision legally registered and that she therefore is not entitled to recover.
1. There was in evidence at the trial an auditor's report, whose findings were not made final by the rule appointing him. He found the following facts with respect to the registration of the plaintiff's automobile. The plaintiff supplied the money for the purchase of the automobile in June, 1935, and it was then registered in her name. "Her address given in the application was `Union Street, Holliston, Mass.' which was the address of her son." In 1936 the car was registered "in the plaintiff's name" giving the same address, "Union Street, Holliston."
The plaintiff formerly lived in Holliston and ran a boarding house, but seventeen or more years prior to the accident she married her present husband and shortly after moved elsewhere in Massachusetts. For ten or more years prior to the accident she lived with her husband in New Hampshire and kept boarders in her home. Three or four years before the accident the foreclosure of a mortgage on her son's house was threatened. The plaintiff took title to the house and, after paying the arrears on the mortgage, deeded it back to him. The plaintiff "had a room" in her son's house, furnished with her furniture, which she occupied when she visited her son. During the two years preceding the accident she visited him in Holliston three or four times each year. The length of such visits varied from one week to four weeks. She came to Holliston in the latter part of February, 1936, to make application for the registration of her automobile and between that time and July 10 came to Holliston three or four times.
The automobile was kept in Holliston. The plaintiff could not operate an automobile and when she wanted to leave New Hampshire for Holliston she would send word to her son and he would drive the automobile to New Hampshire and bring her to Holliston.
The auditor made the general findings that the plaintiff "had her residence" in New Hampshire "and did not have a residence in Holliston, Mass.," and that "the car was not properly registered in her name with the mail address given on the application as Union Street, Holliston, Mass." He found for the defendant.
The bill of exceptions states that the only other evidence at the trial before the jury pertinent to the questions raised by the bill of exceptions was certain testimony, given by the defendant on cross-examination, to the effect that after the collision he "found" the plaintiff's son at the son's home on "Union Street in Holliston" and thought that this was the address given to him by the son on the morning of the accident and the "address that was on the registration."
2. An auditor's findings of fact are prima facie evidence.
Here no evidence contradicting the auditor's subsidiary findings of fact was introduced. The jury therefore was required to accept as true those subsidiary findings. The jury was, however, not obliged to accept the auditor's general findings that the plaintiff "did not have a residence in Holliston" and that the automobile "was not properly registered in her name with the mail address given on the application as Union Street, Holliston, Mass." The subsidiary findings of the auditor warranted the drawing of contrary inferences as to these matters. Cook v. Farm Service Stores, Inc. 301 Mass. 564 , 567, 568. Lakeville v. Cambridge, 307 Mass. 433 , 436-437.
3. The statute required that the plaintiff's application for registration and her certificate of registration should contain her "name, place of residence and address." G. L. (Ter. Ed.) c. 90, Section 2. The burden of proving that these requirements of the statute were not fulfilled was on the defendant. Brodmerkle v. Gorolsky, 293 Mass. 517 , 518. It is not here contended that the plaintiff's "name" was not properly stated in the application and in the certificate. A "mistake" in the statement in an application or in a certificate as to the "place of residence" or the "address" of the owner of a motor vehicle does not invalidate its registration. G. L. (Ter. Ed.) c. 90, Section 9, as amended by St. 1934, c. 361. Emeneau v. Hillery, 282 Mass. 280 , 284. The record in this case, however, shows that the contention made by the plaintiff at the trial was not that there was "mistake" in the statement of her "place of residence" or her "address," but that she, in fact, had the "place of residence" and the "address" set out in the application and in the certificate, within the meaning to be given to the quoted words of the statute. This was the main issue tried before the jury.
4. The word "residence," which often appears in statutes, is a word of variant meaning. The meaning to be given to it depends on the context in which it appears, and it must be construed in the light of the purpose of the statute in which it appears and "the result designed to be accomplished by its use." Marlborough v. Lynn, 275 Mass. 394 , 396-397. Cambridge v. West Springfield, 303 Mass. 63 , 67. It has been said that generally in statutes relating to taxation, voting and settlement the word "residence" means the same as domicil. Stoughton v. Cambridge, 165 Mass. 251, 252-253. But, ...
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