Pearson v. Bara, 263 Mass. 502

Pearson v. Bara

263 Mass. 502 | Mass. | 1928

Wait, J.

The defendant negligently damaged an automobile. Suit in the District Court of Lawrence was brought by Ernest Pearson, who alleged that he was owner of the machine. At the trial it appeared that the automobile was registered in the name of Martha Pearson, his wife, and was purchased by Ernest with funds belonging to various members of his family. A daughter, who was driving the car at the time of the accident and who was in the exercise of due care, testified that the car belonged to her. mother, Martha. Ernest moved that his name be struck out and the name of Martha Pearson be substituted as plaintiff. At the conclusion of the evidence, on January 22, 1926, the defendant requested rulings that the plaintiff could not recover, and that the motor vehicle was an outlaw on the highway because not duly registered. On January 26 the motion to amend was heard. The defendant asked for rulings that (1) the amendment, if allowed, deprived him of right to jury trial; (2) Ernest Pearson had no cause of action that he could properly ask to sustain in the name of another; (3) if he purchased the machine with money partly of himself and partly of his wife, he could not recover because registration was in the name of the wife alone; (4) the amendment, if allowed, constituted the bringing of a new suit, in which Ernest had no beneficial interest.

The court, on January 30, found for the plaintiff Martha Pearson in $115/ the full amount of damage proved; denied the requests filed January 22; allowed the motion to amend; granted requests filed on January 26 and numbered one and two and denied that numbered four; and, although denying that numbered three, ruled that Ernest Pearson could not recover if the machine was joint property but registered in the name of the wife, regardless of amendment.

We find no error. The action was intended to be brought to enable the owner of the automobile to recover compensa*504tian for the damage suffered in the accident. A mistake in the person of the owner could be remedied by amendment when, as a result of the trial, all the facts were before the court. G. L. c. 231, § 51, authorizes any amendment which will "enable the plaintiff to sustain the action for the cause for which it was intended to be brought.” The judge well might regard the motion as the correction of a mistake in the name of the owner. "A party to an action has no vested right to have a case decided and determined upon a form of procedure which may have been inadvisedly or mistakenly chosen.” Pizer v. Hunt, 250 Mass. 498, 504. No steps had been taken to remove the case to the Superior Court. By St. 1925, c. 132, § 2, the judge was not required to deny the amendment on the ground that the defendant had been prejudiced by the loss of trial to a jury. No desire for such .trial had been shown at the proper time for claiming it, and no claim was made, so far as appears, when the motion to amend was presented. No prejudice is made out.

. Registration in the name of Martha Pearson, who had contributed to the purchase and had an interest as owner, was proper. The machine was not an outlaw. Shufelt v. McCartin, 235 Mass. 122. Harlow v. Sinman, 241 Mass. 462, 463. The ruling that Ernest Pearson could not maintain the action was correct. Shufelt v. McCartin, supra.

There is nothing in the contention that the allowance of the amendment rendered the proceeding thereafter a new suit. The allowance implies a finding by the judge that the action, as amended, was the proceeding begun to obtain redress for the cause intended — the same suit, not a new one. G.; L. c. 231, § 138. It follows that the entry must be.

Order dismissing report affirmed.