Koonovsky v. Quellette

• Decision Date: 21 May 1917
• Citation: 226 Mass. 474,116 N.E. 243
• Parties: KOONOVSKY v. QUELLETTE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 474

116 N.E. 243

KOONOVSKY

v.QUELLETTE.

Supreme Judicial Court of Massachusetts, Bristol.

May 21, 1917.

Exceptions from Superior Court, Bristol County; Christopher T. Callahan, Judge.

Action by Frank Koonovsky, by next friend, against August Quellette. There was verdict for plaintiff, and defendant excepts. Exceptions sustained.

D. R. Radovsky, of Fall River, for plaintiff.

David Silverstein, of Fall River, for defendant.

PIERCE, J.

The automobile that the defendant owned and was operating on Pleasant street, a public highway in the city of Fall River, on March 8, 1914, when it came in collision with the plaintiff, was not registered under St. 1909, c. 534, § 2.

The defendant offered testimony tending to prove that the machine had been since the first of January, 1914, was at the time of the accident, and continued to be until April or May, 1914, in the control of one Fontaine for the purpose of sale, of renting or for use; that Fontaine kept a garage; that he was a dealer in motor vehicles as such a person is defined by St. 1909, c. 534, §§ 1, 4; that Fontaine as such dealer had number plates registered under St. 1909, c. 534, § 4; that the plates which were on the defendant's machine were registered plates for the year 1914, and were paid for by Fontaine.

[1] It was not affirmatively shown that Fontaine had applied to the highway commission for any distionguishing numbers or marks, but the jury could well find that Fontaine had the distinguishing numbers for the year 1914, and from that fact, find that he not only had applied to the commission but also that the commission had acted favorably upon his application and caused to be issued to him as a dealer distinguishing marks for that year. That Fontaine was a dealer could be found from the testimony of one Briggs, who answered, ‘Garage, yes, dealer and repairs,’ in response to the question, ‘Let's see, this Fontaine is a dealer in automobiles, isn't he?’ The fact that ‘nowhere does it appear in evidence what knowledge Briggs had of the nature or character of Fontaine's business except above testimony’ does not prove that the statement was not true. The knowledge of Briggs may well have been intimate and accurate, and the weight to be given to his testimony was therefore a matter for the consideration of the jury.

[2] That Fontaine was in control of the automobile of the defendant for the purpose of sale, or for renting or for use, could be found from the uncontradicted fact that Fontaine put his own registered number plates on it and from the testimony of the defendant that ‘he gave his car to Mr. Fontaine for sale, to sell it or use it or let it, that if Fontaine sold it he would get a commission the same as any one who sells a machine or a house for some one else,’ that he asked Fontaine to use the car, ‘that if Fontaine had let the car the money for letting it would have to go to Mr. Quellette,’ the defendant.In reference to the request 1, ‘If the defendant was operating an automobile which had been placed in the care and control of a garage owner and dealer and the garage owner had placed a dealer's plate upon the automobile, while upon the highways of Fall River and at the time of the accident then there was no violation of the law and the automobile was lawfully upon the highways,’ the presiding judge after reading to the jury St. 1904, c. 534, § 4, continued:

‘The section which I have just read is pertinent, because there had been introduced by the defendant in this case some evidence which the defendant...