Squires v. Fraska
| Citation | 17 N.E.2d 693,301 Mass. 474 |
| Parties | HELEN SQUIRES, administratrix, v. CHARLES FRASKA. |
| Decision Date | 28 November 1938 |
| Court | United States State Supreme Judicial Court of Massachusetts |
September 22, 1938.
Present: FIELD, C.
J., DONAHUE LUMMUS, QUA, & RONAN, JJ.
Motor Vehicle Registration. Practice, Civil, Requests, rulings and instructions, Charge to jury.
Not every proprietary interest in a motor vehicle in a person in possession and control thereof precludes legal registration in the sole name of another person having the general proprietary interest in such vehicle.
A request for an instruction framed as a unit properly was refused where it was partly incorrect.
A party has no standing in this court to complain of an inadequacy in the charge to the jury on a determining issue where the charge dealt with the issue in considerable detail and he did not bring any inadequacy to the judge's attention at its close.
TORT. Writ in the Superior Court dated March 1, 1934. A verdict was returned for the defendant before Broadhurst, J., and he reported the case to this court, where it was submitted on briefs.
L. S. Cain, for the plaintiff. C. D. Sloan, for the defendant.
This is an action of tort brought under G. L. (Ter. Ed.) c. 229 Section 5, for the death of the plaintiff's son and intestate, caused by the negligent operation of a motor vehicle on a public way by the defendant, Charles Fraska. There was evidence that the intestate while riding in a motor vehicle was killed instantly by a collision on a public way between that motor vehicle and another operated by the defendant. Though the declaration does not allege specifically that the motor vehicle operated by the defendant was not legally registered, the plaintiff sought to recover on the ground that it was not so registered. And properly it is not questioned that under such a declaration recovery may he had for death caused by the operation on a public way of a motor vehicle not legally registered. Such operation is at least evidence of negligence. Capano v.
Melchionno, 297 Mass. 1 , 10, and cases cited. There was a verdict for the defendant.
With exceptions not here material, a motor vehicle to be legally registered must be registered in the name of "the owner thereof." G. L. (Ter. Ed.) c. 90, Section 2. It was undisputed that the motor vehicle operated by the defendant was registered in the name of Catherine V. Ross. There was evidence that she was the sole owner thereof, that neither her husband, James Ross nor the defendant owned any part of it, and that the defendant did not pay any part of the purchase price therefor. But there was also evidence that this motor vehicle was owned by James Ross and the defendant, each having paid one half of the purchase price, and that it was registered "in the name of Catherine Ross for convenience and for security altho she didn't own it." The defendant, however, testified that "it was registered to Catherine V. Ross and that she owned it . . . [and] that immediately on its purchase . . . he drove it to his yard where it was to be kept, that since its purchase it had been kept at all times in his yard, that it was used in the business of spraying trees in which he and James Ross were partners, that he had the right to use it at all times for his personal business without notice to Catherine V. Ross and did so use it, that Catherine V. Ross procured the insurance and the defendant paid for part of the insurance on it for the use of it, and he was not specially charged for particular trips."
The plaintiff requested the trial judge to instruct the jury that "If the jury finds that the defendant had any proprietary interest in the truck, either alone or jointly with another or others then it was illegally registered and your verdict must be for the plaintiff in the absence of contributory negligence on the part of the plaintiff." The judge, however, failed to instruct the jury as requested, except as the requested instruction was given in his charge, and the plaintiff excepted. No other exception to the charge was taken and at "the time of taking the exception the plaintiff did not call to the attention of the presiding judge in what respect the charge differed from the request." The case comes before us on a report of the trial judge No other question is reported.
There was no error in the judge's "failure to give the requested instruction in terms." It is not error for a judge to fail to instruct the jury in the terms of a requested instruction -- even if it is correct as matter of law and applicable to the pleadings and the evidence -- if the subject matter thereof is dealt with adequately in the charge. Tripp v. Taft, 219 Mass. 81 , 84. Wharmby v. Richards, 277 Mass. 137 . Thompson v Globe Newspaper Co. 279 Mass. 176 , 189. The instruction requested, however, was in part incorrect as matter of law. Not every "proprietary interest" in a motor vehicle in a person in possession and control thereof -- even though sufficient to entitle him, by reason of having a special property therein, to register it in his own name as its "owner," see Downey v. Bay State Street Railway, 225 Mass. 281 , 284; Hurnanen v. Nicksa, 228 Mass. 346 , 350; Caccavo v. Kearney, 286 Mass. 480 , 484 -- precludes legal registration in the name of the person having the general property in such motor...
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