314 Mass. 504 | Mass. | 1943
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. VanDresser v. Firlings, 305 Mass. 51, 56. Conningford v. Cote, 308 Mass. 472, 475, 476. The answers set up not only contributory negligence, but also operation without legal registration. After findings for the plaintiffs, the defendant claimed a report be
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, returning 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
It has been settled by a series of cases, beginning with Dudley v. Northampton Street Railway, 202 Mass. 443, 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. English v. Blacher, 297 Mass. 76, 77. Malloy v. Newman, 310 Mass. 269, 273, 274. Fouquette v. Millette, 310 Mass. 351, 354. Strogoff v. Motor Sales Co. Inc. 302 Mass. 345, 346. 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. Burns v. Winchell, 305 Mass. 276, 278. LeBlanc v. Cutler Co. 305 Mass. 283, 285. Dunn v. Merrill, 309 Mass. 174, 175. Russell v. Holland, 309 Mass. 187, 190.
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. 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.
The statute permitting the operation on the ways of this Commonwealth of a motor vehicle owned by a nonresident
Statute 1939, c. 325, while in form a revision of the earlier statute, in reality made but two changes in the right of a
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. Apger v. New York Central Railroad, 310 Mass. 495, 497. The first and principal question in these cases is whether the male plaintiff was a nonresident within the permission of G. L. (Ter. Ed.) c. 90, § 3, as revised by St. 1939, c. 325.
The statutory definition of a nonresident as used in that statute has been changed several times. Prior to the time in June, 1931, when St. 1931, c. 142, § 1, took effect, the definition of a nonresident had been one who had no regular place of abode or business in the Commonwealth for a period, at first of more than three months, and then after 1914 of more than thirty days. St. 1909, c. 534, §1. St. 1914, c. 204, § 1. St. 1915, c. 16, § 1. G. L. (1921), c. 90, § 1. St. 1923, c. 464, § 1. St. 1924, c. 189. Then by St. 1931, c. 142, § 1, now contained in G. L. (Ter. Ed.) c. 90, § 1, the definition became “any person whose legal resi
In Jenkins v. North Shore Dye House, Inc. 289 Mass. 561, 566, decided under the statutory definition of nonresident in force in 1927, it was said, “The word ‘non-resident’ is not defined in the statute in terms descriptive of the character of the residence in their home state or country of the persons to whom the privilege of operating in this State without a Massachusetts registration is given.” The plaintiff’s intestate in that case lived in Rhode Island until July, 1927, when he gave up his job and his room in Rhode Island, and went on a vacation in Maine with his wife. On his return from Maine in August he got his automobile from Rhode Island and then lived with his wife in this Commonwealth until he was killed in this Commonwealth on September 12, 1927. About a week before, he had told a Massachusetts motor vehicle inspector that he had been in Massachusetts less than thirty days, that he was still a resident of Rhode Island, and that if he got steady work he would stay in Massachusetts and get a Massachusetts registration. It was held that he could have been found a
Under G. L. c. 90, §§ 1 and 3, as they now stand, a person whose “legal residence” is not in this Commonwealth may be a “non-resident” entitled to have his motor vehicle, registered elsewhere, operated here without Massachusetts registration, even though he has acquired and has maintained indefinitely in this Commonwealth a “regular place of abode” — in other words, a regular residence — provided he has not become domiciled here. Jenkins v. North Shore Dye House, Inc. 277 Mass. 440.
Thus it appears that “legal residence” in the statutory definition is something more than residence in the ordinary sense. Residence is a word of varied meanings, ranging from domicil down to personal presence with some slight degree of permanence. Marlborough v. Lynn, 275 Mass. 394, 396-398. Ness v. Commissioner of Corporations & Taxation, 279 Mass. 369. Plymouth v. Kingston, 289 Mass. 57, 60. Cambridge v. West Springfield, 303 Mass. 63, 67. Lakeville v. Cambridge, 305 Mass. 256, 259. Russell v. Holland, 309 Mass. 187, 190, 191. Am. Law Inst. Restatement: Conflict of Laws, § 9, comment (e). It means “in general a personal presence at some place of abode with no present intention of definite and early removal and with a purpose to remain for an undetermined period, not infrequently but not necessarily combined with a design to stay permanently.” Jenkins v. North Shore Dye House, Inc. 277 Mass. 440, 444.
A person may have more than one “regular place of abode” or residence. Avila v. DuPont, 278 Mass. 83, 87. Russell v. Holland, 309 Mass. 187, 191.
Domicil has been said “to be the place of one’s a-ctual residence with intention to remain permanently or for an indefinite time and without any certain purpose to return to a former place of abode.” Tuells v. Flint, 283 Mass. 106, 109. Katz v. Katz, 274 Mass. 77, 80, 81. Commonwealth v. Davis, 284 Mass. 41, 50. Lakeville v. Cambridge, 305 Mass. 256, 260. Kennedy v. Simmons, 308 Mass. 431, 435. Slater v. Munroe, 313 Mass. 538, 545. Texas v. Florida, 306 U. S. 398, 424. The Am. Law Inst. Restatement: Conflict of Laws, § 9, defines domicil as “the place with which a person has a settled connection for certain legal purposes, either because his home is there, or because that place is assigned to him by the law.” The following cases are interesting illustrations. Harvard College v. Gore, 5 Pick. 370. Wilbraham v. Ludlow, 99 Mass. 587. Hallett v. Bassett, 100 Mass. 167. Thayer v. Boston, 124 Mass. 132. Barron v. Boston, 187 Mass. 168. Whately v. Hatfield, 196 Mass. 393. Winans v. Winans, 205 Mass. 388. Ness v. Commissioner of Corporations & Taxation, 279 Mass. 369. Levanosky v. Levanosky, 311 Mass. 638. Bowditch v. Bowditch, ante, 410. Texas v. Florida, 306 U. S. 398.
In Borland v. Boston, 132 Mass. 89, 95, it is said: “A man
The expression used in our statutory definition of a nonresident is “any person whose legal residence is not within the commonwealth.” The statute contemplates that a man may be a nonresident although he has a regular place of abode or residence here. Although the meaning of the words “principal residence” has been somewhat discussed in cases in which an applicant for registration of a motor vehicle has named one of his two residences under a statute requiring him to state his “place of residence and address” (Doyle v. Goldberg, 294 Mass. 105, 107; Caverno v. Houghton, 294 Mass. 110; Harnden v. Smith, 305 Mass. 485), there is no
Within that definition, so interpreted, the male plaintiff could be found to be a nonresident, and the judge found that he was. Even if the male plaintiff had no residence in Pennsylvania, his domicil of origin in that State continued unless and until he acquired a domicil in Massachusetts. It could be found that he never acquired one here.
No question is made as to the legality of the registration in Pennsylvania, or as to compliance by the male plaintiff with the laws of that State. Even if the period of absolute right to operate here, without registration, the motor vehicle of a nonresident registered in Pennsylvania, had expired, the right so to operate it here nevertheless continued subject to the condition as to maintaining liability insurance. It was agreed by the parties, and found by the judge, that such insurance was maintained.
As has already been shown, the right of a nonresident to have his motor vehicle, registered in another State, operated in Massachusetts without registration here, under G. L. c. 90, § 3, as amended by St. 1931, c. 142, § 2, St. 1933, c. 188, and St. 1939, c. 325, is qualified so that the right exists only “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
The provision for unlimited operation of pleasure cars and trucks is found in Pennsylvania Vehicle Code, Title 75, § 99, as amended June 27, 1939, by Penn. Pub. Laws, 1135, § 6. We do not find any Pennsylvania statute authorizing the operation by students of motor vehicles during the school term. Yet the registrar, under the authority of the statute just quoted, has “finally determined” that there is such a law in Pennsylvania, and we cannot go behind his determination. It may be that the statement that students are authorized to operate motor vehicles without limitation during the school term is an administrative interpretation of the definition of a nonresident in Pennsylvania Vehicle Code, Title 75, § 2, to the effect that the dwelling of a student from another State during the school term is not a “regular place of abode.” That definition is this, omitting immaterial exceptions: “Any resident of any State or country who has no regular place of abode or business in this Commonwealth for a period of more than thirty (30) consecutive days in the year.” The registrar summarizes that definition as follows: “Persons having regular place of abode or business, except a summer residence, in Pennsylvania for more than 30 consecutive days ceases [stc3 to be non-resident.” The provision as to students, as determined by the registrar, would authorize the operation in Pennsylvania of the motor vehicle of a student resident in Massachusetts at a like time and under like circumstances as the operation by the male plaintiff in this case, and would thus meet the reciprocal provision of our statute, even though the student had a place of abode in Pennsylvania for the purpose of study. A student does not lose his status as such merely because he earns
The Appellate Division rested its decision in favor of the plaintiffs upon the provision as to students already discussed. But there is a broader ground upon which the same result may rest. The definitions of “non-resident” in the Pennsylvania statute and in the Massachusetts statute cover the great mass of residents of one State who find occasion to have their motor vehicles operated in the other. The question of similarity of privileges, for the purposes of the reciprocal provision of our statute, is submitted to the registrar for final determination only as “to the extent, as to length of time of operation and otherwise” of the privileges granted in Pennsylvania to residents of Massachusetts. The question, who are residents and nonresidents, is not submitted to him. We think that our Legislature did not intend that our definition of a nonresident should be whittled down to conform to narrower definitions in some other State or country whenever a motor vehicle registered in such State or country is involved. If that were to be done, we should have, not one definition of a nonresident, but many definitions, depending upon the shifting legislation of other sovereignties. Accordingly, we think that the male plaintiff could be found to be a nonresident under our definition, without regard to any narrower definition prevailing in Pennsylvania.
The question remains, whether there was error in the denial of any of the requests for rulings made by the defendant, in any respect not covered by what has been said. The only requests in the case of the female plaintiff that appear to need discussion are the following: “2. Upon all the evidence a finding for the defendant would be warranted. 3. The court would be warranted in finding that the car, owned and operated by the plaintiff’s husband and in which the plaintiff was a passenger, was a nuisance . . . .” The only requests in the case of the male plaintiff that appear to need discussion are the following: “2. Upon all the
When the evidence was concluded, and before any findings were made, the rulings requested seem to have been proper to be given. Domicil is largely a question of fact, and intention is important. Kennedy v. Simmons, 308 Mass. 431, 435. Levanosky v. Levanosky, 311 Mass. 638, 642. We assume that the judge might have disbelieved the evidence of continuing domicil in Pennsylvania, and drawn inferences that would establish a domicil in Massachusetts. We assume that the judge as the fact-finding tribunal might have decided either way.
It has been settled since Bresnick v. Heath, 292 Mass. 293, 298, that in a case tried without jury the party having the burden of proof is entitled on request to a ruling that the evidence warrants a finding that the burden has been sustained, if that is true. Only in that way can he make sure that a decision against him is not based upon the erroneous ground that on the evidence there is nothing for the fact-finding tribunal to consider. Failure to give such a ruling on request is equivalent to, and implies, a ruling that as matter of law such a finding cannot be made. A decision against that party will be deemed on appeal the result of such ruling of law, and not the result of a consideration of the question of fact, unless the contrary is demonstrated by specific findings of fact as distinguished from a mere assertion that unstated findings make the requested
We need not inquire whether the requests complied with Rule 27 of the District Courts (1940), which provides that "No review as of right shall lie to the refusal of a request for a ruling 'upon all the evidence’ in a case admitting of specification of the grounds upon which such request is based unless such grounds are specified in the request, and then only upon the grounds so specified.” For the purpose of this discussion we assume that the requests complied with the rule. The Appellate Division did not take the point, and did not discuss the requests. See DiLorenzo v. Atlantic National Bank, 278 Mass. 321, 325.
It appears from the findings that the decision in favor of the plaintiffs was not the result of any error in denying the requests or of any ruling of law implied in such denial. The action of the judge upon the requests, even if erroneous, was therefore harmless. The decision in favor of the plaintiffs was based upon findings that required the decision, made after consideration of the question of fact. Ajax Shoe & Leather Co. v. Selig, 305 Mass. 389, 391. Perry v. Hanover, ante, 167, 175-176. Lyons v. Hennessey, ante, 359, 363.
Order dismissing report affirmed in each case.