Rosenthal v. Liss

• Decision Date: 05 December 1929
• Parties: ROSENTHAL v. LISS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 373

169 N.E. 142

ROSENTHAL

v.LISS.

Supreme Judicial Court of Massachusetts, Bristol.

Dec. 5, 1929.

Appeal from Superior Court, Bristol County; F. A. Milliken, Judge.

Action by Myer Rosenthal against Max Liss. Judgment for plaintiff, defendant's report to the appellate division was dismissed, and defendant appeals. Reversed, and judgment entered for defendant.O. S. Cook, M. R. Brownell, F. H. Taber, and A. Sherman, all of New Bedford, for appellant.

RUGG, C. J.

This is an action of tort whereby the plaintiff seeks to recover damages to his automobile due to its collision on May 3, 1928, with a negligently operated automobile owned by the defendant. The case was heard upon an agreed statement of facts. Thus it appears that on January 1, 1927, the plaintiff had registered in his name a motor truck bearing its correct motor number. In the following April he caused to be put in this truck, in place of the one previously there, a motor bearing a different number. No information of this change was given either to the police of the nearby city of New Bedford or to the registry of motor vehicles. In January, 1928, the truck, still driven by the motor placed therein in April, 1927, was registered without any statement of a change in the number of the motor. The plaintiff informed his insurance company of the change of motors at the time the truck was registered for 1928, but the insurance company failed to note the different number of motor on the application for registration. On January 1, 1928, the same truck of the plaintiff was registered and a certificate of registration was issued to the plaintiff bearing the number of the discarded motor instead of the different number of the motor actually in the truck.

[1] After hearing the trial judge found for the plaintiff. This general finding imports a finding of all subsidiary facts necessary to that conclusion. the trial judge was at liberty to draw from the agreed statement of facts any inferences of which they rightly might be susceptible, there being no express agreement that no inferences should be drawn. G. L. c. 231, § 126. By this statute the more strict rule governing cases tried upon agreed statements of facts stated in Cunningham v. Connecticut Fire Ins. Co., 200 Mass. 333, 86 N. E. 787, where earlier cases are collected, was materially broadened. It must be presumed that the trial judge drew whatever inferences necessary to reach his conclusion rightly could be drawn from the agreed statement of facts. Atlantic Maritime Co. v. Gloucester, 228 Mass. 519, 522, 117 N. E. 924.

The trial judge filed a finding of facts as follows: ‘On the agreed statement of facts the sole question in this case is whether or not the plaintiff's automobile was registered according to law, if not, it was an outlaw upon the highway. There can be no question that prior to St. 1928, c. 187, the automobile was not properly registered, the mistake in the engine number being a fatal one. At the time of the collision the statute (St. 1928, c. 187) had taken effect and become the law. This statute in its first section provides that ‘a motor vehicle or trailer shall be deemed to be registered in accordance with this chapter (G. L. c. 90) notwithstanding any mistake in the application for registration as relates to the engine, serial or maker's number thereof,’ and I am of the opinion that this statement applies and that the plaintiff's automobile must be deemed to be properly registered.'

This case was submitted on briefs by the defendant and no brief was filed to argument made in behalf of the plaintiff. The trial judge decided that the case at bar was governed by St. 1928, c. 187. Apparently the judges of the appellate division made the same decision. The defendant has argued the case solely on the theory that that part of the decision was right. Commonly we accept a case as it is presented by the parties and assume that points not presented by either party in argument are waived. ‘Questions which merely lurk in the record,’ capable of being raised, but not urged by the parties, are not ordinarily searched out by the court, but are passed in silence. Vigeant v. Postal Telegraph Cable Co., 260 Mass. 335, 343, 344, 157 N. E. 651, 53 A. L. R. 867, and cases cited; Webster v. Fall, 266 U. S. 507, 511, 45 S. Ct. 148, 69 L. Ed. 411. To pursue that course in the case at bar would require us to determine whether the facts bring the case within the terms of a statute, and possibly to interpret a statute as binding upon the parties which had not become operative at the time the cause of faction here depending arose. We think that we ought to take notice of that, even though it does not affect our jurisdiction and the parties have failed to bring it to our attention, and that it would be unjust to decide a case on such an erroneous conception. Commonwealth v. Andler, 247 Mass. 580, 142 N. E. 921.

[5] St. 1928, c. 187, was approved on April 2, 1928. It was not declared to be an emergency measure. Its title is ‘An act relative to the effect of certain misstatements in applications for registration of motor vehicles or trailers and policies of insurance covering the same.’ The substance of the act confirms the accuracy of this description in its title. Consequently it does not fall within the matters excluded from the sweep of ‘the referendum’ under article 48 of the Amendments to the Constitution, part 3, ‘Referendum Petitions,’ § 2, ‘Excluded Matters.’ See Opinion of the Justices, 254 Mass. 617, 151 N. E. 680.Id., ...