Rummel v. Peters
| Decision Date | 13 September 1943 |
| Citation | 51 N.E.2d 57,314 Mass. 504 |
| Parties | PAUL Z. RUMMEL v. LOUIS J. PETERS (and a companion case [1]). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 13, 1941.
Present: FIELD, C.
J., DONAHUE LUMMUS, QUA, DOLAN, COX, & RONAN, JJ.
Motor Vehicle Nonresident, Operation. Way, Public: trespass. Evidence Presumptions and burden of proof. Domicil. Residence. Registrar of Motor Vehicles. Student. Practice, Civil Requests, rulings and instructions; Appellate Division: appeal. Error, Whether error harmful. Words, "Nonresident," "Residence," "Legal residence," "Domicil." The words "legal residence" in the definition of "Non-resident" in G. L.
(Ter. Ed.) c. 90, Section 1, mean domicil, so that one whose domicil is not in Massachusetts is such a "Non-resident" even though he has a regular place of abode or residence here in the ordinary sense.
One, whose domicil of origin had been in Pennsylvania, where he still owned property, paid his poll tax and voted, but who for several years had lived with his wife in Massachusetts during about nine months of each year for the purpose of studying at universities and of teaching for compensation, might properly be found to have his "legal residence" in
Pennsylvania, and therefore to be a "Non-resident," within G. L. (Ter. Ed.) c. 90, Section 1.
The courts cannot go behind a final determination by the registrar of motor vehicles of matters submitted to his determination under G. L. (Ter.
Ed.) c. 90, Section 3, as appearing in St. 1939, c. 325. A student, living and studying in Massachusetts but nonresident within G.
L. (Ter. Ed.) c. 90, Section 1; Section 3, as appearing in St. 1939, c. 325, and owner of an automobile properly registered in Pennsylvania, was entitled to operate it in Massachusetts without a Massachusetts registration in March, 1940, where it appeared that he carried the insurance specified in said Section 3 and had complied with the motor vehicle laws of Pennsylvania and that, as determined by the
Massachusetts registrar of motor vehicles, Pennsylvania granted to residents of Massachusetts privileges similar to those granted to residents of Pennsylvania by said Section 3, the extent of the privileges granted by Pennsylvania being, as to students, "Unlimited during school term."
One studying for advanced degrees at a university was none the less a student although at the same time he earned money by teaching.
The matters submitted to the determination of the registrar of motor vehicles by G. L. (Ter. Ed.) c. 90, Section 3, as appearing in St. 1939, c. 325, do not include the question, who are residents and nonresidents within that statute.
The "reciprocal" provision of G. L. (Ter. Ed.) c. 90, Section 3, as appearing in St. 1939, c. 325, does not require the altering of the meaning of the word "Non-resident" therein to conform to different meanings of that word in the laws of States or countries of registration involved.
Although there was error in a denial by a judge sitting without jury of rulings requested by the defendant, who had the burden of proof on the decisive issue of the case, to the effect that a decision in his favor would be warranted on the evidence, the error was harmless where it appeared that a decision for the plaintiff by the judge was based on warranted findings of fact made after consideration of the evidence and requiring the decision for the plaintiff.
TWO ACTIONS OF TORT. Writs in the Municipal Court of Brookline dated May 9, 1940.
The cases were heard by Comerford, J. In this court the cases were argued at the bar in November, 1941, before Field, C. J., Donahue, Qua, Dolan, & Ronan, JJ., and afterwards were submitted on briefs to all the Justices.
J. J. Finn, for the defendant. M. Herman, for the plaintiffs.
On March 23, 1940, the plaintiffs, husband and wife, were riding in an automobile operated by the male plaintiff in Brookline, when his automobile was damaged and the female plaintiff was hurt by an automobile operated by the defendant which ran into the rear of the automobile in which they were riding. The defendant concedes that there was evidence of his negligence and does not now contend that the plaintiffs were guilty of contributory negligence unless it was in operating or riding in an automobile which was not properly registered. VanDresser v. Firlings, 305 Mass. 51 , 56. Conningford v. Cote, 308 Mass. 472 , 475, 476. The answers set up not only contributory negligence, but also operation without legal registration. After findings for the plaintiffs, the defendant claimed a report because of the refusal of certain requested rulings. The Appellate Division dismissed the report, and the defendant appealed to this court.
The following findings were made. The male plaintiff lived in Pennsylvania all his life. His automobile was registered there in his name from January 1, 1940, until after the accident, and bore Pennsylvania registration plates at the time of the accident. But it had been registered in Massachusetts in his name during the year 1939. On his application for registration in 1939 he gave his "Massachusetts residential address" as "6 Autumn St., Brookline, Mass." and gave no other address although the form directed as follows: "(If non-resident, give legal address also.)." He testified that at the time of the accident his residential status was the same as in 1939. The plaintiffs were married in Pennsylvania, and about 1934 came to Massachusetts, where the male plaintiff studied at Harvard for two years for a degree of Master of Education, teaching school meantime in Newton under a teaching fellowship from Harvard. Then he studied three years at Boston University in order to obtain a degree of Doctor of Philosophy, teaching meanwhile at a school in Boston where he received $10 a week. He also received a credit on his tuition of $375 a year for working as an assistant in a department in Boston University. He obtained the last named degree in June, 1940. During these years the plaintiffs spent nine or ten months of each year in Massachusetts, returning home to Pennsylvania for the summer and the Christmas vacation. For the last three years they had an apartment on Autumn Street in Boston which they furnished themselves. Both had Massachusetts licenses to operate motor vehicles at the time of the accident, and the male plaintiff had a liability policy in accordance with the Massachusetts statute. G. L. (Ter. Ed.) c. 90, Section 3, as revised by St. 1939, c. 325.
The male plaintiff owned furniture and real estate in Pennsylvania, and paid his poll tax there. Although he received a Massachusetts poll tax yearly, it was waived, and he never paid it. He voted in Pennsylvania, and has never voted in Massachusetts. He was a full time member of the summer faculty of a college in Pennsylvania. He registered his automobile in Massachusetts in 1939 because he intended to teach here in the summer, but in fact he did not. The judge found that the teaching that he did in Massachusetts was not at a regular place of business or employment. The judge found that the plaintiffs were residents of Pennsylvania, and that the male plaintiff was permitted to operate a motor vehicle, with Pennsylvania plates only, in Massachusetts under the law of Massachusetts.
It has been settled by a series of cases, beginning with Dudley v. Northampton Street Railway, 202 Mass. 443 , that the owner of a motor vehicle not duly registered here and not permitted on the ways of this Commonwealth by G.L.c. 90, Section 3, as amended, cannot recover for injury to the vehicle or to his person caused by the negligence of another while such vehicle was unlawfully upon such ways. Potter v. Gilmore, 282 Mass. 49. English v. Blacher, 297 Mass. 76 , 77. Malloy v. Newman, 310 Mass. 269, 273, 274. Fouquette v. Millette, 310 Mass. 351 , 354. Strogoff v. Motor Sales Co. Inc. 302 Mass. 345 , 346. The burden of proof that the vehicle was unlawfully upon the ways of the Commonwealth is on the defendant. Brewer v. Hayes, 285 Mass. 144 , 145. Burns v. Winchell, 305 Mass. 276 , 278. LeBlanc v. Cutler Co. 305 Mass. 283 , 285. Dunn v. Merrill, 309 Mass. 174 , 175. Russell v. Holland, 309 Mass. 187 , 190.
But it is provided that the operation of an unregistered motor vehicle not permitted by G.L.c. 90, Section 3, as amended, shall not constitute a defence in an action of tort by a person not the owner or operator of the vehicle, "unless it is shown that the person so injured . . . knew or had reasonable cause to know that this section was being violated." G. L. (Ter. Ed.) c. 90, Section 9, as amended by St. 1934, c. 361. Knapp v. Amero, 298 Mass. 517. The female plaintiff in the present case, however, can gain no advantage from that section, for she knew all the facts relative to the legality of the operation of the motor vehicle in which she was riding. Brennan v. Schuster, 288 Mass. 311 .
The statute permitting the operation on the ways of this Commonwealth of a motor vehicle owned by a nonresident and registered elsewhere is G.L.c. 90, Section 3, as later amended. By that section as revised by St. 1931, c. 142, Section 2, and St. 1933, c. 188, a motor vehicle "owned by a non-resident who has complied with the laws relative to motor vehicles . . ., and the registration and operation thereof, of the state or country of registration," may be operated on the ways of this Commonwealth without registration here, "to the extent, as to length of time of operation and otherwise, that, as finally determined by the registrar [of motor vehicles], the state or country of registration grants substantially similar privileges in the case of motor vehicles . . . duly registered under the laws and owned by residents of this commonwealth." That right...
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