Faria v. Veras

Citation298 Mass. 117,10 N.E.2d 267
PartiesFARIA v. VERAS (four cases). BOTELHO v. VERAS.
Decision Date18 September 1937
CourtUnited States State Supreme Judicial Court of Massachusetts


Exceptions from Superior Court, Bristol County; Hanify, Judge.

Actions by Lena Faria, Charles Faria, Charles Faria, Jr., Mary Faria, and Manuel Botelho, administrator, against Joseph Veras. Verdict for defendant in each action, and plaintiffs bring exceptions.

Exceptions overruled.H. Wm. Radovsky and James B. Kelley, both of Fall River, for plaintiffs.

H. F. Hathaway, of Boston, for defendant.

FIELD, Justice.

These five actions of tort were tried together. Four of them are brought to recover compensation for personal injuries sustained by the plaintiffs by reason of a collision on a highway on November 11, 1930, between the automobile in which they were riding and an automobile operated by the defendant. The fifth action is brought by an administrator to recover for the death of his intestate, who was riding in the automobile with the other plaintiffs, resulting from the same collision. The declaration in each case contains a count alleging improper registration of the automobile operated by the defendant. There was a verdict for the defendant in each case. The cases come before us on the plaintiffs' exceptions to the exclusion of evidence and to the refusal of the judge to instruct the jury as requested. These exceptions relate solely to the issue of improper registration.

Liability for injuries resulting from the operation of an automobile improperly registered is based on violation of the statute providing that no ‘person shall operate any motor vehicle * * * [with exceptions not here material] unless such vehicle is registered in accordance with this chapter.’ G.L.(Ter.Ed.) c. 90, § 9. See St.1929, c. 180. Balian v. Ogassin, 277 Mass. 525, 530, 179 N.E. 232, 78 A.L.R. 1021. Material statutory provisions relative to registration are as follows: ‘Application for the registration of motor vehicles and trailers may be made by the owner thereof. The application shall contain, in addition to such other particulars as may be required by the registrar, a statement of the name, place of residence and address of the applicant, with a brief description of the motor vehicle or trailer, including the name of the maker, the number, if any, affixed by the maker, and, in case of a motor vehicle, the engine number and the character of the motor power. * * * The registrar or his duly authorized agents shall register in a book or upon suitable index cards to be kept for the purpose the motor vehicle or trailer described in the application, giving to the vehicle a distinguishing mark or number to be known as the register number for that vehicle, and shall thereupon issue to the applicant a certificate of registration. The certificate shall contain the name, place of residence and address of the applicant and the register number or mark, and shall be in such form and contain such further information as the registrar may determine.’ G.L.(Ter.Ed.) c. 90, § 2. See St.1928, c. 316, § 3.

The burden of proving that the automobile operated by the defendant was not registered as required by law was on the plaintiffs. See Conroy v. Mather, 217 Mass. 91, 104 N.E. 487,52 L.R.A.(N.S.) 801. The case for the plaintiffs rests on the ground that it was not so registered, because it was not described in accordance with the statutory requirements, in that it was improperly described as a ‘coach.’ There was evidence that this automobile was a ‘four door car,’ a ‘brougham’ or a ‘sedan,’ that ‘it could be called either with equal propriety,’ and that ‘there is no structural difference in the two cars.’ There was also evidence that a ‘coach’ has only two doors, and ‘is an entirely different type of car from a sedan, whether it is called a sedan or a brougham,’ and that ‘in the general automobile trade when one speaks of a sedan he cannot possibly have in mind a coach.’ The plaintiffs rely on improper description in the application for registration, in index cards kept by the registrar of motor vehicles and in the certificate of registration. There was evidence from which it could have been found that in the application-which had been destroyed by the time of the trial-the automobile was described as a ‘brougham.’ The defendant testified, however, and his testimony was corroborated, and not contradicted, that in the certificate of registration the automobile was described mistakenly as a ‘coach instead of a brougham.’ And there was testimony by an employee in the office of the registrar of motor vehicles that in certain ‘index cards,’ which are made up from the ‘register book’ or ‘record Book’ in the office, the automobile was described as a ‘coach.’

The plaintiffs argue exceptions to the refusal by the judge of six of their requests for rulings. These requested rulings-except that numbered 19-are set out in a footnote.* There was no error in the refusal of any of these requests.

Requested ruling numbered 19 was as follows: ‘If the Jury find that a coach was basically different type of automobile than a sedan or brougham, and the certificate of registration described the defendant's automobile as a coach, whereas it was a sedan or brougham, then the defendant's automobile was improperly registered.’ There was evidence warranting the finding of the facts stated in this requested ruling. The question for determination, therefore, is whether these facts, if found, would as matter of law require the conclusion that the automobile was improperly registered. They would not.

Except as modified by statute with respect to ‘so much of the description’ of an automobile ‘as relates to the engine, serial or maker's number thereof’ (G.L.[Ter.Ed.] c. 90, § 9), failure of the application for registration-which must be made by the owner of the automobile-to contain the statements required by G.L.(Ter.Ed.) c. 90, § 2, apart from trifling inaccuracies [see Caverno v. Houghton (Mass.) 1 N.E.(2d) 4], invalidates the registration. See now St.1934, c. 361. This principle applies to error in description, and included, prior to the change in the statute by St.1928, c. 187, § 1, even as innocent mistakein the engine serial or maker's number. See Leonard v. Conquest, 274 Mass. 347, 351, 174 N.E. 677;Emeneau v. Hillery, 282 Mass. 280, 284, 184 N.E. 720. See, also, Nichols v. Holyoke Street Railway Co., 250 Mass. 88, 145 N.E. 33.

The certificate of registration, however, is issued by the ‘registrar or his duly authorized agents.’ See G.L.(Ter.Ed.) c. 90, § 2. The statute does not provide that this certificate be filled out by the applicant. Nevertheless, Brodmerkle v. Gorolsky (Mass.) 200 N.E. 274, is authority for the proposition that an automobile is not legally registered where the certificate of registration contains no statement of the residence and an inadequate statement of the address of the applicant. It was there said (see 200 N.E. 274, at page 275): ‘G.L.(Ter.Ed.) c. 90, § 2, requires that both the application and the certificate of registration shall contain ‘the name, place of residence and address of the applicant.’ This ‘puts each of these three mandates on the same footing.’ Crean v. Boston Elevated Railway Co. (Mass.) 198 N.E. 172. Under the terms of the statute, they apply both to the application and to the certificate. * * * The applicant is himself the source of that which is contained in the application and he has ample opportunity to see to it that the certificate is also complete and correct.' The court, however, was there dealing with statements specifically required by statute to be contained in the certificate of registration. Though there is a specific requirement of statute that the application for registration shall contain ‘a brief description of the motor vehicle’ there is no such specific statutory requirement with respect to a certificate of registration. Such a description, if contained in such a certificate, is put there by virtue...

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  • Rosenfield v. Fine
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 20, 1937

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