Harnden v. Smith
| Decision Date | 26 March 1940 |
| Citation | 26 N.E.2d 310,305 Mass. 485 |
| Parties | JOHN HARNDEN v. EVELYN A. SMITH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
February 8, 1940.
Present: FIELD, C.
J., DONAHUE, QUA DOLAN, & COX, JJ.
Motor Vehicle Registration. Evidence, Of residence, Of ownership. Practice Civil, Requests, rulings, and instructions.
Upon the evidence it was a question for the jury whether the registrant of an automobile had abandoned her home with her husband in one municipality and taken up her separate residence at a beach cottage in another municipality so as to make proper a statement of the cottage as her address and place of residence in her application for registration.
On conflicting evidence, the question whether, at the time of registration of an automobile, the registrant was the owner, was for the jury.
An automobile was improperly registered and was a trespasser upon the highway at the time of an accident if the registrant was not the owner at the time of registration although he had become the owner before the time of the accident.
No error was shown in a refusal to give in terms an instruction which might have confused the jury without an explanation of the materiality of the evidence on which it was based.
TORT. Writ in the Municipal Court of the City of Boston dated December 29, 1937.
On removal to the Superior Court, a verdict was returned for the plaintiff before Swift, J., in the sum of $3,200. The defendant alleged exceptions.
E. R. Langenbach, for the defendant.
E. B. Hanify, (C.
J. McCarthy with him,) for the plaintiff.
This is an action of tort to recover damages for personal injuries resulting from the alleged illegal operation of an automobile by the defendant. The jury found for the plaintiff, and the only exceptions argued are to the refusal of the trial judge to give three rulings requested by the defendant and to allow her motion for a directed verdict. It was agreed that at the time of the injury the automobile in question was registered in the name of "Evelyn A. Smith [defendant], 261 Wessagusett Road, North
Weymouth"; that the registration was issued on September 8, 1931; and that the application for registration contained the name of the defendant, as owner, and her address as it appears in the registration.
1. There was no error in the refusal to give the first request that there "is no evidence to warrant a finding that the defendant's car was illegally registered by reason of any statement set out in her application for registration or her registration certificate as to her address or place of residence." It is not contended that the automobile in question was not improperly registered if the application for and certificate of registration did not contain the place of residence and address of the defendant. G.L. (Ter. Ed.) c. 90, Section 2. See Gray v. Hatch, 299 Mass. 105 , 106-107, and cases cited. Inasmuch as the injuries were sustained on November 4, 1931, the provisions of St. 1934, c. 361, Section 9 of G.L. (Ter. Ed.) c. 90, have no application.
The defendant testified that she owned a house in Quincy from June, 1923, until about 1938, and that she lived there from 1922 to 1931; that in June or July of 1931 she hired a furnished cottage at Wessagusett Beach in North Weymouth at a weekly rental of $10; that she was there only one summer and that she did not know whether she was going to be there for the summer or longer, or how long she was going to stay, when she went; that when she went there to live she intended to make the cottage her residence, and that the reason for her going was to establish her own residence and to live apart from her husband, with whom she was having trouble. She also testified that she left the house in Quincy "to go down to a temporary place in Wessagusett . . . for the time being to see if she couldn't iron out her difficulties," intending to go back if she could. She took nothing with her except her personal belongings. Immediately after the accident, she went to the house in Quincy where she remained for about a week. She left the beach cottage late in November and returned to the Quincy home where she stayed until about nine months before the trial, which was in 1938. She further testified that, while she was at the beach, she went back and forth to the Quincy house every day on account of her work; that at first her husband used to come for her in the morning and take her back at night; that after the accident she went to the Quincy house, where she had been working that day, for her license which was in her pocketbook; that she never voted in North Weymouth, but did in Quincy, and that her son, who was nine years old at the time of the accident, went to school in Quincy in September, October and November, 1931. She admitted that at a previous trial of the case in 1936 she had testified without qualifications that she had lived at the Quincy home nearly fourteen years, and also that after the accident "we just started home," meaning Quincy. There was other testimony from which the jury could have found that during the summer of 1931 the defendant was at the beach cottage. There was also evidence from a witness who lived next to the beach cottage that he never saw the defendant as an occupant there from July to November; that the house was not habitable for winter in 1931; and that he never knew the defendant to be an occupant of the cottage in that year. A police officer who was at the scene of the accident testified that the defendant gave the Quincy house as her address at that time.
It would seem that when applying for registration, the defendant gave the house at the beach not only as her address but also as her...
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