Gately v. U-Haul Co.

• Citation: 350 Mass. 483,215 N.E.2d 743
• Decision Date: 01 April 1966
• Docket Number: U-HAUL
• Parties: Charles L. GATELY et al. v.CO.
• Court: United States State Supreme Judicial Court of Massachusetts

Page 743

215 N.E.2d 743

350 Mass. 483

Charles L. GATELY et al. v. U-HAUL CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 8, 1966.

Decided April 1, 1966.

Leon M. Fox, Framingham, for plaintiffs.

Thomas B. Arnold, Boston, for defendant.

Before WILKINS, C.J., and SPALDING, CUTTER, SPIEGEL, and REARDON, JJ.

WILKINS, Chief Justice.

In this 'action of contract and/or tort' the writ, dated May 20, 1965, and describing the defendant as an Ohio corporation having 'its principal place of business in Cleveland, State of Ohio,' was served on the Registrar of Motor Vehicles. This method of service is authorized in an action arising out of the operation of a motor vehicle or trailer by a nonresident or his agent on a way in this Commonwealth. G.L. c. 90, § 3A (as amended through St.1955, c. 196, § 1). See Toczko v. Armentano, 341 Mass. 474, 477, 170 N.E.2d 703. On July 20, 1965, the defendant filed an answer in abatement, which has not been heard. On September 24, 1965, the defendant filed a motion to dismiss, which was allowed on October 15. The plaintiffs appealed.

A motion to dismiss is the proper way to raise the question of a defect apparent on the face of the record in actions at law. Paraboschi v. Shaw, 258 Mass. 531, 532, 155 N.E. 445; Tyler v. Boot & Shoe Wkrs. Union, 285 Mass. 54, 55, 188 N.E. 509; Farber v. Lubin, 327 Mass. 128, 129, 97 N.E.2d 419; Commissioner of Corps. & Taxn. v. Aetna Life Ins. Co., 328 Mass. 404, 409, 104 N.E.2d 140. But a motion to dismiss that requires supporting evidence outside the record will not be allowed. Summers v. Boston Safe Deposit & Trust Co., 301 Mass. 167, 168--169, 16 N.E.2d 670; Furlong v. Cronan, 305 Mass. 464, 465, 26 N.E.2d 382.

The motion to dismiss in the case at bar alleges that neither the defendant nor its agent was operating an automobile or a trailer in the Commonwealth at the time of the accident referred to in the declaration. The presence of this statement in the motion is irregular.

The declaration, which has twelve counts, shows that the plaintiffs are husband and wife. It alleges that 'for the purpose of conveying personal property belonging to * * * (the plaintiffs)' the male plaintiff rented from the defendant a two-wheel trailer; that the trailer had a defective wheel bearing which, while attached to his automobile, 'failed' with resultant injuries to the plaintiffs, and damage to their personal property and to the automobile while in operation by the female plaintiff on the Massachusetts Turnpike in Auburn.

We shall treat the declaration as part of the record to be considered in deciding the motion to dismiss. This has been done in other cases. Adams v. Richardson, 268 Mass. 78, 80--81, 167 N.E. 254; Graustein v. Boston & Maine R.R., 304 Mass. 23, 25, 22 N.E.2d 594; Farber v. Lubin, 327 Mass. 128, 130, 97 N.E.2d 419; Gore v. United States, 171 F.Supp. 136, 138 (D. Mass.). The plaintiffs contend that no defect is apparent in the writ or the declaration that would entitle the defendant to have the action dismissed. They take the position that nothing appears to prevent the conclusion that the trailer was being operated by an agent of the defendant within the meaning of G.L. c. 90, § 3A; and that if there should...