298 Mass. 505 | Mass. | 1937
This is an action of tort to recover for personal injuries sustained by the plaintiff on August 6, 1936, while operating an automobile owned by him on a public way, and for damage to the automobile, as a result of a collision with an automobile operated by the defendant. The defendant’s answer contains, with a general denial, an allegation of contributory negligence of the plaintiff, but no specific allegation that the automobile operated by him was not legally registered. The defendant’s motion for a directed verdict in his favor “upon the law, pleadings and evidence” was denied, and the defendant excepted.
The argument of the defendant in support of the motion was based solely on the ground that the automobile operated by the plaintiff was not legally registered.
The burden of proving that the plaintiff’s automobile was not legally registered was on the defendant. Conroy v. Mather, 217 Mass. 91. It could not have been ruled as matter of law that this burden was sustained. Consequently there was no error in the denial of the motion.
The defendant relies primarily on a misstatement of the plaintiff’s residence in his application for registration. Independently of the effect of G. L. (Ter. Ed.) c. 90, § 9, as amended by St. 1934, c. 361, a misstatement — apart from trifling inaccuracies (Caverno v. Houghton, 294 Mass. 110, 113) —of the plaintiff’s residence in the application would invalidate an attempted registration. See Lappanasse v. Loomis, 297 Mass. 290, and cases cited. But G. L. (Ter. Ed.) c. 90, § 9, as amended by St. 1934, c. 361, provides as follows: “A motor vehicle or trailer shall be deemed to be registered in accordance with this chapter notwithstanding any mistake in so much of the description thereof contained in the application for registration or in the certificate required to be filed under section thirty-four B as relates to the type of such vehicle or trailer or to the engine, serial or maker’s number thereof, or any mistake in the statement of residence of the applicant contained in said application or certificate.”
It appears from the plaintiff’s uncontradicted testimony — which is binding upon him — that this automobile was
The testimony of the plaintiff, moreover, must be construed as meaning that the statement of his residence in the certificate of registration was the same as in the application. Since a statement of “place of residence” in the certificate of registration is specifically required by statute (G. L. [Ter. EdJ c. 90, § 2) an omission of such a statement or a misstatement may invalidate the registration. See Brodmerkle v. Gorolsky, 293 Mass. 517. Compare Faria v. Veras, ante, 117, 120-121. And the relief given by the amendment of G. L. (Ter. Ed.) c. 90, § 9, by St. 1934, c. 361, from the effect of a “mistake” in the “statement of residence” in an application is not in terms extended to a misstatement in the certificate of registration. While the application is made by the owner of a motor vehicle, the certificate is issued by the “registrar or his duly author
Even apart from the specific reference in the motion to the pleadings the action of the trial judge cannot be reversed if it was right on the pleadings. Aldworth v. F. W. Woolworth Co. 295 Mass. 344, 345. Though the answer did not allege that the automobile operated by the plaintiff was not legally registered, that fact could be shown under the allegation of contributory negligence, since the operation on a public way of an automobile not legally registered not only is a wrongful act independent of negligence, but also is evidence of negligence. MacDonald v. Boston Elevated Railway, 262 Mass. 475. Balian v. Ogassin, 277 Mass. 525, 530. In view, however, of the conclusion reached it is unnecessary to decide whether the action of the judge, considered in the light of the pleadings, was right on any other ground. See MacDonald v. Boston Elevated Railway, 262 Mass. 475, 477.
Exceptions overruled.