Rummel v. Peters

• Citation: 51 N.E.2d 57,314 Mass. 504
• Parties: RUMMEL v. PETERS (two cases).
• Decision Date: 13 September 1943
• Court: United States State Supreme Judicial Court of Massachusetts

314 Mass. 504

51 N.E.2d 57

RUMMEL

v.PETERS (two cases).

Supreme Judicial Court of Massachusetts, Norfolk.

Sept. 13, 1943.

Actions by Paul Z. Rummel and his wife, Margaret G. Rummel, respectively, against Louis J. Peters for damage to plaintiff husband's automobile and injuries to plaintiff wife as result of an automobile operated by defendant running into the rear of plaintiff's automobile. Findings for plaintiffs, and, from orders of the Appellate Division dismissing reports, defendant appeals.

Affirmed.Appeal from Municipal Court of Brookline; Comerford, Judge.

Before FIELD, C. J., and DONAHUE, LUMMUS, QUA, DOLAN, COX, and RONAN, Jj.

M. Herman, of Boston, for plaintiff.

J. J. Finn, of Boston, for defendant.

LUMMUS, Justice.

On March 23, 1940, the plaintiffs, husband and wife, were riding in an automobile operated by the male plaintiff in Brookline, when his automobile was damaged and the female plaintiff was hurt by an automobile operated by the defendant which ran into the rear of the automobile in which they were riding. The defendant concedes that there was evidence of his negligence, and does not now contend that the plaintiffs were guilty of contributory negligence unless it was in operating or riding in an automobile which was not properly registered. Van Dresser v. Firlings, 305 Mass. 51, 56, 24 N.E.2d 969;Conningford v. Cote, 308 Mass. 472, 475, 476, 32 N.E.2d 692. The answers set up not only contributory negligence, but also operation without legal registration. After findings for the plaintiffs, the defendant claimed a report because of the refusal of certain requested rulings. The Appellate Division dismissed the report, and the defendant appealed to this court.

The following findings were made. The male plaintiff lived in Pennsylvania all his life. His automobile was registered there in his name from January 1, 1940, until after the accident, and bore Pennsylvania registration plates at the time of the accident. But it had been registered in Massachusetts in his name during the year 1939. On his application for registration in 1939 he gave his ‘Massachusetts residential address' as ‘6 Autumn St., Brookline, Mass.’ and gave no other address although the form directed as follows ‘(If non-resident, give legal address also).’ He testified that at the time of the accident his residential status was the same as in 1939. The plaintiffs were married in Pennsylvania, and about 1934 came to Massachusetts, where the male plaintiff studied at Harvard for two years for a degree of Master of Education, teaching school meantime in Newton under a teaching fellowship from Harvard. Then he studied three years at Boston University in order to obtain a degree of Doctor of Philosophy, teaching meanwhile at a school in Boston where he received $10 a week. He also received a credit on his tuition of $375 a year for working as an assistant in a department in Boston University. He obtained the last named degree in June, 1940. During these years the plaintiffs spent nine or ten months of each year in Massachusetts, returing home to Pennsylvania for the summer and the Christmas vacation. For the last three years they had an apartment on Autumn Street in Boston which they furnished themselves. Both had Massachusetts licenses to operate motor vehicles at the time of the accident, and the male plaintiff had a liability policy in accordance with the Massachusetts statute, G.L. (Ter.Ed.) c. 90, § 3, as revised by St.1939, c. 325.

The male plaintiff owned furniture and real estate in Pennsylvania, and paid his poll tax there. Although he received a Massachusetts poll tax yearly, it was waived, and he never paid it. He voted in Pennsylvania, and has never voted in Massachusetts. He was a full time member of the summer faculty of a college in Pennsylvania. He registered his automobile in Massachusetts in 1939 because he intended to teach here in the summer, but in fact he did not. The judge found that the teaching that he did in Massachusetts was not at a regular place of business or employment. The judge found that the plaintiffs were residents of Pennsylvania, and that the male plaintiff was permitted to operate a motor vehicle, with Pennsylvania plates only, in Massachusetts under the law of Massachusetts.

It has been settled by a series of cases, beginning with Dudley v. Northampton St. R. Co., 202 Mass. 443, 89 N.E. 25, 23 L.R.A.,N.S., 561, that the owner of a motor vehicle not duly registered here and not permitted on the ways of this Commonwealth by G.L. c. 90, § 3, as amended, cannot recover for injury to the vehicle or to his person caused by the negligence of another while such vehicle was unlawfully upon such ways. Potter v. Gilmore, 282 Mass. 49, 184 N.E. 373, 87 A.L.R. 1462;English v. Blacher, 297 Mass. 76, 77, 8 N.E.2d 343;Malloy v. Newman, 310 Mass. 269, 273, 274, 37 N.E.2d 1001;Fouquette v. Millette, 310 Mass. 351, 354, 37 N.E.2d 1008;Strogoff v. Motor Sales Co., Inc., 302 Mass. 345, 346, 18 N.E.2d 1016. The burden of proof that the vehicle was unlawfully upon the ways of the Commonwealth is on the defendant. Brewer v. Hayes, 285 Mass. 144, 145, 188 N.E. 600;Burns v. Winchell, 305 Mass. 276, 278, 25 N.E.2d 752;LeBlanc v. Cutler Co., 305 Mass. 283, 285, 25 N.E.2d 715;Dunn v. Merrill, 309 Mass. 174, 175, 34 N.E.2d 498;Russell v. Holland, 309 Mass. 187, 190, 34 N.E.2d 668.

But it is provided that the operation of an unregistered motor vehicle not permitted by G.L. c. 90, § 3, as amended, shall not constitute a defence in an action of tort by a person not the owner or operator of the vehicle, ‘unless it is shown that the person so injured * * * knew or had reasonable cause to know that this section was being violated.’ G.L. (Ter.Ed.) c. 90, § 9, as amended by St.1934, c. 361. Knapp v. Amero, 298 Mass. 517, 11 N.E.2d 467. The female plaintiff in the present case, however, can gain no advantage from that section, for she knew all the facts relative to the legality of the operation of the motor vehicle in which she was riding. Brennan v. Schuster, 288 Mass. 311, 192 N.E. 835.

The statute permitting the operation on the ways of this Commonwealth of a motor vehicle owned by a nonresident and registered elsewhere is G.L. c. 90, § 3, as later amended. By that section as revised by St.1931, c. 142, § 2, and St.1933, c. 188, a motor vehicle ‘owned by a nonresident who has complied with the laws relative to motor vehicles * * * and the registration and operation thereof, of the state or country of registration,’ may be operated on the ways of this Commonwealth without registration here, ‘to the extent, as to length of time of operation and otherwise, that, as finally determined by the registrar [of motor vehicles], the state or country of registration grants substantially similar privileges in the case of motor vehicles * * * duly registered under the laws and owned by residents of this commonwealth.’ That right to operate here was absolute for a period of thirty days ‘after either the date of entry of the vehicle in any one year or the acquisition by such non-resident of a regular place of abode or business within the commonwealth,’ whichever event occurred first. Van Dresser v. Firlings, 305 Mass. 51, 24 N.E.2d 969;Knowles v. Cashman, 305 Mass. 56, 58, 24 N.E.2d 973;Boettjer v. Clark, 305 Mass. 59, 24 N.E.2d 971;Connigford v. Cote, 308 Mass. 472, 32 N.E.2d 692;Malloy v. Newman, 310 Mass. 269, 271, 37 N.E.2d 1001;Apger v. New York Cent. R.R., 310 Mass. 495, 38 N.E.2d 652;Rozzi v. Caggiano, 310 Mass. 752, 39 N.E.2d 951. After the expiration of said thirty days the right continued, provided, ‘first, the [owner] maintained in full force a policy of liability insurance providing indemnity against loss by reason of the liability to pay damage to others for bodily injury or death caused by the * * * automobile, and, second, the [owner] or the operator of the automobile, ‘while operating the same * * *, has on his person or in the vehicle in some easily accessible place a permit issued by the registrar which then authorizes the operation of such vehicle without registration under this chapter.’' Malloy v. Newman, 310 Mass. 269, 272, 37 N.E.2d 1001, 1004;Conningford v. Cote, 308 Mass. 472, 32 N.E.2d 692. This permit ‘would not be issued unless the applicant had obtained a contract of insurance similar to that required of residents.’ Apger v. New York Cent. R.R., 310 Mass. 495, 497, 38 N.E.2d 652, 654.

Statute 1939, c. 325, while in form a revision of the earlier statute, in reality made but two changes in the right of a nonresident to have his motor vehicle operated in Massachusetts without registration here. First, it changed the period of absolute right to not ‘more than thirty days in the aggregate in any one year,’ and, ‘in any case where the owner thereof acquires a regular place of abode or business or employment within the commonwealth’ to not more than ‘a period of thirty days after the acquisition thereof.’ After the expiration of these periods the right to operate without registration here continues, with the same provision as to insurance as in the earlier statute. The second change made was that the necessity of a permit was eliminated. Van Dresser v. Firlings, 305 Mass. 51, 53, 24 N.E.2d 969;Apger v. New York Cent. R.R., 310 Mass. 495, 498, 38 N.E.2d 652. The only later amendment, St.1941, c. 282, has no bearing on the right of a nonresident individual.

No person is permitted to have his motor vehicle operated on the ways of this Commonwealth without registration here, unless the vehicle is owned by a nonresident and its operation is permitted by G.L. (Ter.Ed.) c. 90, § 3, as revised by St.1939, c. 325. This is settled by G.L. (Ter.Ed.) c. 90, § 9, as amended by St.1934, c. 361. A resident, as distinguished from a nonresident, must in all cases obtain registration here. Gondek v. Cudahy Packing Co., 233 Mass. 105, 123 N.E. 398;Apger v. New York Cent. R.R., 310 Mass. 495, 497, 38 N.E.2d 652. The...