Jenkins v. North Shore Dye House, Inc.
| Decision Date | 08 March 1935 |
| Citation | 289 Mass. 561,194 N.E. 823 |
| Parties | JENKINS v. NORTH SHORE DYE HOUSE, Inc. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Report from Superior Court, Norfolk County; P. M. Keating, Judge.
Action by Jessie E. Jenkins, administratrix, against the North Shore Dye House, Inc., in which jury returned a verdict for plaintiff. On report.
Judgment for plaintiff on verdict.
W. A. Murray, of Boston, for plaintiff.
M. J Dray, of Hyde Park, for defendant.
An automobile owned by the plaintiff's intestate and registered in his name in Rhode Island, while being operated by him under a Rhode Island license on a public highway in Milford in this commonwealth, was in collision on September 12, 1927, with a motor truck owned by the defendant and operated by its employee. The plaintiff's intestate, as the result of injuries received in the collision, died. A jury in the superior court, after the denial by the judge of the defendant's motion for a directed verdict subject to its exception, returned a verdict for the plaintiff administratrix on counts seeking to recover damages for the death of the plaintiff's intestate and for his conscious suffering. There afterwards the trial judge reported the case on a stipulation of the parties.
The stipulation in effect provided that judgment should be entered for the plaintiff upon the verdict if this court should decide that on the evidence the jury was warranted in finding that on September 12, 1927, the plaintiff's intestate was a resident of Rhode Island, and should decide that the trial judge did not err in refusing a certain request for instructions made by the defendant. The stipulation further provided that if the court should decide that the evidence did not warrant such a finding by the jury or should decide that the judge erred in not giving the defendant's request, judgment should be entered for the defendant. The request was ‘ that in determining whether the plaintiff's intestate had, on September 12, 1927, a regular place of abode or business in Massachusetts for more than thirty days, the jury might consider the evidence that the plaintiff's intestate had a place of abode or business in Massachusetts from January 10, 1927, to February 4, 1927, as well as the evidence that the plaintiff's intestate had a place of abode or business in Massachusetts from August 18, 1927 to September 12, 1927, and that they might add together the total number of days in said two periods on which they found that plaintiff's intestate so had a regular place of abode or business in Massachusetts, and if the total thereof amounted to more than thirty days, plaintiff's intestate was not a non-resident within the meaning of the automobile statute.’
The evidence pertinent to the questions here presented viewed in its aspects most favorable to the plaintiff is here summarized. On January 1, 1927, the deceased and his wife were living in a small apartment in Providence where he was employed by an ice company. From January 10 to February 4 of that year while his wife stayed in Providence, he was at a lake in Wrentham in this commonwealth assisting in the harvesting of ice for the Providence company by which he was employed. At the end of that period he went back to Providence. On March 9 he purchased an automobile in Rhode Island and registered it there. About May 30 his wife went to Wrentham where she owned a house in which she and her husband had not lived up to that time. It had been rented unfurnished until the preceding autumn. She went there for the purpose of supervising repairs which she was having made. She had furniture stored in the barn and moved enough of it into the house for her own needs while she stayed there. When she went to Wrentham the apartment which she and her husband had occupied was given up and he kook a room in a lodging house in Providence and continued to work there, as might have been found, until some time in July when he ‘ threw up’ his job. Between the sixteenth and nineteenth of July the deceased gave up his room and with his wife went to Maine where they stayed about a month with relatives. The automobile was left in Providence. Some time between the eighteenth and the twenty-second of August they left Maine. The wife went to Wrentham and the husband to Providence where he got his automobile and then joined his wife at Wrentham and lived in her house with her until the day of his accident. He secured a job on the state road but the work was too hard for him and he gave it up after three days. He then had temporary work on another job for a week. Some time after September 1 he made an arrangement with one Arata who had an ice delivery route in Milford whereby he was to work on the route for a week and if the work suited him he was to take over the route for a period while Arata was engaged in another trucking job and at the end of that time Arata would take back the operation of the ice delivery route again. Arata testified that the trucking job he had would take usually about five or six weeks. It was during the second week that the plaintiff's intestate ran the ice delivery route that the accident occurred which caused his death. About a week before the accident the deceased had a talk with a Massachusetts motor vehicle inspector in which he told the inspector that he still kept his Rhode Island residence; that he had not been in Wrentham thirty days; that he was just up there for a little while and that he understood that he could stay there under the statutory non-resident owner's privilege for a period of thirty days. The inspector said that the deceased had until September 18 but if he remained after the eighteenth of September he should get a Massachusetts registration. The deceased replied that he did not have steady work but if he decided to stay he would get a Massachusetts registration. While in Maine he told his wife that they would go to Wrentham and if he got steady work there he would stay and if he did not he could not stay in Wrentham, that he would go back to Rhode Island, and if he got work he would stay. He told a neighbor in Wrentham shortly before the accident that he was not going to stay in Massachusetts, that unless he found a ‘ better job’ or a ‘ steady job’ or ‘ something like that,’ he would go back to Rhode Island.
The plaintiff asserts, and the defendant denies, that under the statutes in force at the time of her intestate's injury he had the rights and privileges of a non-resident owner in the operation of his automobile on the highways of this commonwealth. G. L. c. 90, § 3, St. 1923, c. 431, § 1, provided that ‘ * * * a motor vehicle * * * owned by a non-resident who has complied with the laws relative to motor vehicles * * * and the operation thereof, of the state or country in which he resides may be operated on the ways of this commonwealth without registration; * * * provided, that said state or country grants similar privileges to residents of this commonwealth. * * *’ The word ‘ non-resident’ in the foregoing section must be taken to mean as provided in section 1 of the same chapter, ‘ any resident of any state or country who has no regular place of abode or business in the commonwealth for a period of more than thirty days in the year; provided, that any such resident who owns a commercial motor vehicle which is operated in the commonwealth for more than thirty days in the year shall not, as to such...
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