Burns v. Winchell

• Decision Date: 28 February 1940
• Citation: 305 Mass. 276,25 N.E.2d 752
• Parties: BURNS v. WINCHELL (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

305 Mass. 276

25 N.E.2d 752

BURNS

v.WINCHELL (two cases).

Supreme Judicial Court of Massachusetts, Hampden.

Feb. 28, 1940.

Actions by Robert S. Burns and by Myra I. Burns against Herbert E. Winchell for personal injuries and for damages to truck sustained in collision between automobile and truck. On reports to the Appellate Division of the refusal of the judge to rule as requested by the defendant, the general findings for the respective plaintiffs of $500 and $100 respectively were set aside and findings for the defendant ordered, on the ground that there was error in refusing to rules as requested, and the plaintiffs appeal.

Order of Appellate Division reversed, and findings of trial judge for the plaintiff ordered to stand.Appeal from District Court of Springfield; Davis, Judge.

R. W. King and V. J. Zeo, both of Springfield, for plaintiffs.

Merritt J. Aldrich, of Springfield, for defendant.

FIELD, Chief Justice.

These two actions of tort brought in a district court grew out of a collision in 1937 between a motor truck operated by Robert S. Burns and an automobile operated by the defendant. Robert S. Burns brought one of these actions to recover compensation for personal injuries sustained by him. His wife, Myra I. Burns, brought the other action to recover compensation for damage to the motor truck. The defendant in his answer in each action alleged contributory negligence, but did not specifically allege that the motor truck was not legally registered.

In the action brought by the male plaintiff the defendant requested rulings that there ‘is no evidence in the record to support a finding that the plaintiff was in the exercise of due care, and therefore he cannot recover,’ that upon ‘all the evidence the automobile operated by the plaintiff was illegally registered,’ and that upon ‘all the evidence the automobile operated by the plaintiff was owned jointly by the plaintiff and his wife and the registration in the name of the wife was illegal and the plaintiff cannot recover. In the action brought by the female plaintiff the defendant requested a ruling that upon ‘all the evidence the automobile for which plaintiff seeks to recover damages was illegally registered and plaintiff cannot recover.’ The trial judge denied these requests for rulings on the ground that he had ‘found to the contrary,’ or that he had ‘found that the registration was legal.’ In each case he made specific findings of fact including a finding that ‘the registration * * * was proper and legal,’ and found for the plaintiff. On reports to the Appellate Division of the refusal of the judge to rule as requested by the defendant the general findings for the respective plaintiffs were set aside and findings for the defendant ordered, on the ground that there was error in refusing to rule as requested. The plaintiffs appealed to this court.

The only question for decision upon these appeals is whether there was error in the refusal of any of the defendant's requests for rulings. McKenna v. Andreassi, 292 Mass. 213, 215, 197 N.E. 879. And since the defendant in effect concedes-apart from lack of legal registration of the motor truck-that recovery was not barred in either action by contributory negligence, only matters relating to the legality of the registration need by considered.

Though the fact that the motor truck was not registered as required by law was not specifically pleaded it could have been shown under the allegation of contributory negligence as evidence of such negligence. MacDonald v. Boston Elevated Railway Co., 262 Mass. 475, 476, 477, 160 N.E. 327;Van Dresser v. Firlings, Mass., 24 N.E.2d 969. See also Di Franco v. West Boston Gas Co., 262 Mass. 387, 389, 390, 160 N.E. 326. Where, as here, absence of legal registration could be shown under the pleadings as evidence of contributory negligence-as well as in cases where it is specially pleaded-the burden of proving that the motor truck was not registered as required by law was on the defendant. Brewer v. Hayes, 285 Mass. 144, 145, 188 N.E. 600;MacInnis v. Morrissey, Mass., 11 N.E.2d 472. See also G.L.(Ter.Ed.) c. 231, § 85. No one of the defendant's requests for rulings in either case could properly have been granted unless it could have been ruled as matter of law on the evidence that the defendant's burden of proving that the motor truck was not legally registered had been sustained. We think that such a ruling could not rightly have been made. Whether on any other ground the denial of any of the requests for rulings could be supported need not be considered. See Knowles v. Cashman, Mass., 24 N.E.2d 973.

The certificate of registration introduced in evidence showed that the motor truck was registered in the name of the female plaintiff and there was no evidence, and is no contention, to the contrary.

It is, therefore, to be taken as true that the motor truck was registered in her name. Such registration was legal unless she was not the ‘owner’ of the motor truck within the meaning of G.L.(Ter.Ed.) c. 90, § 2. This word ‘owner,’ however, is not a technical term. It includes, of course, the sole owner of a motor vehicle. But it is not confined to a person having an absolute right in a motor vehicle, and in some circumstances, at least, may apply to a part owner of a motor vehicle. Harlow v. Sinman, 241 Mass. 462, 463, 464, 135 N.E. 553;Pearson v. Bara, 263 Mass. 502, 504, 161 N.E. 823.

1. Whatever findings were warranted by the evidence it could not have been ruled as matter of law the sole ownership of the motor truck by the female plaintiff was negatived by the evidence. In both cases there was evidence-apparently oral, though the reports do not show by whom the testimony was given-that the two plaintiffs ‘conducted jointly an unincorporated business known as Burns Bottling Company,’ herein referred to as the company, that the female plaintiff ‘did the bookkeeping and attended to the sales for said company,’ that the male plaintiff ‘attended to all other business affairs of the company,’ that the motor truck ‘was purchased from the Geo. E. Adams, Inc., of Springfield, primarily for use in the business affairs of said company and incidentally for personal use of * * * [the two plaintiffs] since they had no other automobile,’ that ‘said automobile was used in making deliveries to the said company's customers and at the time of the accident said automobile was being used to transport a tube of gas belonging to said company and it was being used at that time exclusively for said company.’ (There was evidence of like character in the action brought by the male plaintiff that his wife ‘was not present and was not riding in said automobile at the time of the accident.’)

In both cases also there was evidence-apparently oral, though the reports do not show by whom the testimony was given-that the motor truck was purchased by the male plaintiff in 1935 in his own name under a conditional sale contract, and a part of the purchase price was paid by a transfer to the conditional vendor of an automobile owned by the female plaintiff and registered in her name at that time, that the balance due on the purchase price of said automobile was paid in eighteen equal instalments of $26 each, that some of these payments were made with money of the company and some of them with money belonging to the female plaintiff,...