316 Mass. 262 | Mass. | 1944
The plaintiff David Puro, his wife, the plaintiff Wilhelmina Puro, and his daughter, the plaintiff Irene Puro, were riding in an automobile operated by the defendant, who was accompanied by his wife and daughter, on the morning of August 20, 1939, on their way from Fitchburg to Cape Cod for the purpose of spending four days in a camp, when the automobile overturned. The plaintiffs had verdicts on the counts of their declarations alleging that their injuries were due to the negligence of the defendant. They excepted to the action of the judge who on leave reserved ordered the entry of verdicts for the defendant on those counts. The jury returned verdicts for the defendant on the counts based on gross negligence.
It is admitted that the plaintiffs were in the exercise of due care and that their injuries were caused by ordinary negligence of the defendant. It is the contention of the plaintiffs that the defendant had undertaken to transport them in pursuance of a contract made for his benefit and that he was, therefore, under an obligation to them to use due care in the operation of the automobile.
There was evidence that the plaintiffs and the defendant and his family had been neighbors and friends for many years and that the plaintiffs had frequently before and since the accident ridden with the defendant in his automobile. The defendant’s wife had suffered a broken leg in February, 1939, and had received four massage treatments from the plaintiff Wilhelmina Puro, but she never intended to charge
There was no reversible error in excluding the question by
The defendant’s automobile was registered in the name of John Heikkinen. He testified that in his citizenship papers, a deed, the directory and the voting list he was named Lassi John Heikkinen but that since hé came to Fitchburg thirty-two years before he had been known around Fitchburg as John Heikkinen. His friends called him John. He generally used that name. The plaintiffs requested an instruction that if the defendant’s name was Lassi John Heikkinen and the automobile was registered in the name of John Heikkinen, then the plaintiffs were entitled to recover whether the defendant was negligent or not. The plaintiffs excepted to the refusal to grant this request and to the instructions given so far as they were inconsistent with the request. The request was not a correct statement of the law. The jury were properly instructed that, if the defendant was commonly and usually known as John, the automobile was legally registered in that name, otherwise the registration in the name of John was not legal. There was no evidence that the defendant was- not acting in good faith in having the automobile registered in the name of John Heikkinen or that he did so to conceal his identity. Crompton v. Williams, 216 Mass. 184. Koley v. Williams, 265 Mass. 601. Brockton v. Conway, 278 Mass. 219. Farnum v. Bankers & Shippers Ins. Co. 281 Mass. 364. Brewer v. Hayes, 285 Mass. 144. Bridges v. Hart, 302 Mass. 239.
The final contention of the plaintiffs is that, no question of pleading having been raised at the trial, the judge ought not to have limited the issue of illegal registration to the matter of negligence alone. They cite Di Franco v. West Boston Gas Co. 262 Mass. 387. That was an action of tort for the death of a pedestrian caused by the illegally registered automobile of the defendant. It was pointed out that there was error in directing a verdict for the defendant, as the fact that its automobile was not properly registered was itself evidence of negligence. There is nothing in that case that would support a contention that the plaintiffs, not being entitled to recover for ordinary negligence which was the only ground upon which the jury found in their favor, ought now to be permitted to have the verdicts stand upon another and entirely different ground which they did not allege. In these circumstances, the pertinent principle is that a plaintiff cannot secure a reversal of a ruling directing or ordering the entry of a verdict for a defendant if the ruling was right on the evidence or the pleadings. Brasslavsky v. Boston Elevated Railway, 250 Mass. 403, 404. Ferris v. Boston & Maine Railroad, 291 Mass. 529, 533. Simpson v. Eastern Massachusetts Street Railway, 292 Mass. 562, 565. Glynn v. Blomerth, 312 Mass. 299. Payne v. R. H. White Co. 314 Mass. 63.
Exceptions overruled.