Dunn v. Merrill

• Decision Date: 27 May 1941
• Citation: 309 Mass. 174,34 N.E.2d 498
• Parties: DUNN v. MERRILL (two cases). SONIGAN et al. v. MERRILL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 174

34 N.E.2d 498

DUNN

v.MERRILL (two cases).

SONIGAN et al.

v.MERRILL.

Supreme Judicial Court of Massachusetts, Essex.

May 27, 1941.

Report from Superior Court, Essex County; Donahue, Judge.

Three actions by William L. Dunn, by Frank F. Sonigan and others, and by Robert Dunn, by next friend, against Mabel Merrill, growing out of an automobile collision. Verdicts for plaintiffs for $480, $700, and $750 respectively. On report from the superior court.

Each case ordered to stand for action in the superior court on a pending motion for a new trial.

Argued before FIELD, C. J., and LUMMUS, QUA, COX, and DOLAN, JJ.

R. L. Sisk and P. F. Shanahan, both of Lynn, for plaintiff.

J. W. Sullivan, of Lynn, for defendant.

QUA, Justice.

These actions all grow out of a collision between an automobile operated by the minor plaintiff and alleged to have been owned by other plaintiffs and an automobile of the defendant. The only issue is whether in each case the judge should have directed a verdict for the defendant on the ground that the automobile operated by the minor plaintiff was not legally registered in the name of ‘the owner’ under G.L.(Ter.Ed.) c. 90, § 2, as amended.

The burden of proof on this issue rested upon the defendant. Conroy v. Mather, 217 Mass. 91, 94, 104 N.E. 487, 52 L.R.A.,N.S., 801; Le Blanc v. Cutler Co., 305 Mass. 283, 285, 25 N.E.2d 715. The ruling of the trial judge must therefore be upheld unless the evidence established as matter of law that the automobile was not registered in the name of the owner.

The application for registration was signed ‘National Brokerage Company by William L. Dunn.’ Below that, after the words ‘Print last name,’ appeared the name ‘Dunn,’ followed by an operator's license number. All answers were typewritten, except the signature, ‘National Brokerage Company by William L. Dunn,’ which was written in ink. The certificate of registration does not appear, but there is nothing to show that it was not issued in the name in which the application was made. The application, after the words, ‘Massachusetts residential address, or place of business, if concern,’ gave the address ‘National Brokerage Company 43 Commercial Wharf Boston, Mass.’ There was evidence tending to show that in March, 1938, when the application was made, there existed a partnership between the plaintiff William L. Dunn and the plaintiff Sonigan under a name variously stated in the evidence as ‘Dunn & Sonigan, D/B/A National Brokerage Company’ and ‘National Brokerage Company, William L. Dunn and Frank F. Sonigan,’ which did business at 43 Commercial Wharf, Boston. A corporation bearing the somewhat different name ‘National Brokerage Co., Inc.’ had previously done dusiness at the same place, but had ceased to do so at the end of 1936, when it had been succeeded by the partnership. The corporation, however, had not been dissolved, and its name still remained over the door. On December 30, 1936, Dunn and Sonigan had filed in the office of the city clerk of Boston, in accordance with G.L.(Ter.Ed.) c. 110, § 5, certificate stating that they were carrying on a business at 43 Commercial Wharf under the name ‘National Brokerage Company.’ From this evidence the jury could properly find that the automobile was registered in the name of an existing partnership known as ‘National Brokerage Company.’

There was nothing in the remaining evidence upon which the defendant relies that as matter of law compelled a different conclusion. We need not recite it in detail. Question 9 in the application read, ‘Is this vehicle owned by you individually? (Answer Yes or No).’ This was answered ‘No.’ Question 10 read, ‘Or is it owned jointly or by a co-partnership association or corporation? If owned jointly or by a concern give the name and address.’ This was not answered, but the immediately following question 11, calling for ‘Massachusetts residential address, or place of business, if concern,’ was answered, ‘National Brokerage Company 43 Commercial Wharf Boston, Mass.’ We do not regard the failure to answer question 10 as fatal. The answers given made it sufficiently plain that the automobile was owned by a ‘concern’ called ‘National Brokerage Company’ and that this ‘...