Russell v. Holland

34 N.E.2d 668, 309 Mass. 187, 1941 Mass. LEXIS 768
CourtMassachusetts Supreme Judicial Court
DecidedMay 28, 1941
StatusPublished
Cited by16 cases

This text of 34 N.E.2d 668 (Russell v. Holland) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Russell v. Holland, 34 N.E.2d 668, 309 Mass. 187, 1941 Mass. LEXIS 768 (Mass. 1941).

Opinion

Donahue, J.

An automobile, owned by the plaintiff and operated by her son, was in collision on March 25, 1936, on a public highway in Holliston, with an automobile owned and operated by the defendant. The plaintiff brings this action to recover for resultant damage to her automobile.

The case was tried in the Superior Court and a jury returned a verdict for the plaintiff. It is now agreed that a finding was warranted that the defendant operated his automobile, in a negligent manner, and that a finding that he was grossly negligent was not warranted. It is not now contended that the plaintiff’s son was negligent in the manner in which he operated the plaintiff’s automobile. The contention of the defendant is that the plaintiff’s automobile was not at the time of the collision legally registered and that she therefore is not entitled to recover.

1. There was in evidence at the trial an auditor’s report, whose findings were not made final by the rule appointing him. He found the following facts with respect to the registration of the plaintiff’s automobile. The plaintiff supplied the money for the purchase of the automobile in June, 1935, and it was then registered in her name. “Her address given in the application was ‘Union Street, Holliston, Mass.’ which was the address of her son.” In 1936 the car was [189]*189registered “in the plaintiff’s name” giving the same address, “Union Street, Holliston.”

The plaintiff formerly lived in Holliston and ran a boarding house, but seventeen or more years prior to the accident she married her present husband and shortly after moved elsewhere in Massachusetts. For ten or more years prior to the accident she lived with her husband in New Hampshire and kept boarders in her home. Three or four years before the. accident the foreclosure of a mortgage on her son’s house was threatened. The plaintiff took title to the house and, after paying the arrears on the mortgage, deeded it back to him. The plaintiff “had a room” in her son’s house, furnished with her furniture, which she occupied when she visited her son. During the two years preceding the accident she visited him in Holliston three or four times each year. The length of such visits varied from one week to four weeks. She came to Holliston in the latter part of February, 1936, to make application for the registration of her automobile and between that time and July 10 came to Holliston three or four times.

The automobile was kept in Holliston. The plaintiff could not operate an automobile and when she wanted to leave New Hampshire for Holliston she would send word to her son and he would drive the automobile to New Hampshire and bring her to Holliston.

The auditor made the general findings that the plaintiff “had her residence” in New Hampshire “and did not have a residence in Holliston, Mass.,” and that “the car was not properly registered in her name with the mail address given on the application as Union Street, Holliston, Mass.” He found for the defendant.

The bill of exceptions states that the only other evidence at the trial before the jury pertinent to the questions raised by the bill of exceptions was certain testimony, given by the defendant on cross-examination, to the effect that after the collision he “found” the plaintiff’s son at the son’s home on “Union Street in Holliston” and thought that this was the address given to him by the son on the morning of the accident and the “address that was on the registration.”

[190]*1902. An auditor’s findings of fact are prima facie evidence. Here no evidence contradicting the auditor’s subsidiary findings of fact was introduced. The jury therefore was required to accept as true those subsidiary findings. The jury was, however, not obliged to accept the auditor’s general findings that the plaintiff “did not have a residence in Hollis-ton” and that the automobile “was not properly registered in her name with the mail address given on the application as Union Street, Holliston, Mass.” The subsidiary findings of the auditor warranted the drawing of contrary inferences as to these matters. Cook v. Farm Service Stores, Inc. 301 Mass. 564, 567, 568. Lakeville v. Cambridge, 307 Mass. 433, 436-437.

3. The statute required that the plaintiff’s application for registration and her certificate of registration should' contain her “name, place of residence and address.” G. L. (Ter. Ed.) c. 90, § 2. The burden of proving that these requirements of the statute were not fulfilled was on the defendant. Brodmerkle v. Gorolsky, 293 Mass. 517, 518. It is not here contended that the plaintiff’s “name” was not properly stated in the application and in the certificate. A “mistake” in the statement in an application or in a certificate as to the “place of residence” or the “address” of the owner of a motor vehicle does not invalidate its registration. G. L. (Ter. Ed.) c. 90, § 9, as amended by St. 1934, c. 361. Emeneau v. Hillery, 282 Mass. 280, 284. The record in this case, however, shows that the contention made by the plaintiff at the trial was not that there was “mistake” in the statement of her “place of residence” or her “address,” but that she, in fact, had the “place of residence” and the “address” set out in the application and in the certificate, within the meaning to be given to the quoted words of the statute. This was the main issue tried before the jury.

4. The word “residence,” which often appears in statutes, is a word of variant meaning. The meaning to be given to it depends on the context in which it appears, and it must be construed in the light of the purpose of the statute in which it appears and “the result designed to be [191]*191accomplished by its use.” Marlborough v. Lynn, 275 Mass. 394, 396-397. Cambridge v. West Springfield, 303 Mass. 63, 67. It has been said that generally in statutes relating to taxation, voting and settlement the word "residence” means the same as domicil. Stoughton v. Cambridge, 165 Mass. 251, 252-253. But, “Cases arise in which there is a distinction between domicil and residence. A person may have a residence in one place for various reasons comparatively temporary in nature such as performing the duties of an office, transacting a business, seeking improvement in health, pursuing pleasure or visiting relatives, and yet have his permanent home or domicil in a different place.” Tuells v. Flint, 283 Mass. 106, 109.

Among such cases are those which involve statutes, relating to an owner’s registration of his motor vehicle, where the word "residence” appears. An owner of an automobile “may have a domicil in one place and a residence in another place at the same time.” Caverno v. Houghton, 294 Mass. 110, 113. He may "have two places of residence within the Commonwealth,” Doyle v. Goldberg, 294 Mass. 105, 108, or a place of residence within, and a place of residence without the Commonwealth. See Avila v. DuPont, 278 Mass. 83, 87. The determination of the place of residence of a person is commonly a question of fact. Hamden v. Smith, 305 Mass. 485, 487. Doyle v. Goldberg, 294 Mass. 105, 108.

The plaintiff was not merely a casual visitor at the home of her son in Holliston. Since the time when she had averted a foreclosure of a mortgage on her son’s home, there was a room in his house fitted up for her occupancy with furniture which she owned. She occupied this room when in Holliston.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. McKelvey
775 P.2d 461 (Court of Appeals of Washington, 1989)
Green v. COMMISSIONER OF CORPORATIONS & TAXATION.
305 N.E.2d 92 (Massachusetts Supreme Judicial Court, 1973)
Soshnick v. O'Connor
50 Mass. App. Dec. 150 (Mass. Dist. Ct., App. Div., 1973)
Shinnick v. Crook
18 Mass. App. Dec. 142 (Mass. Dist. Ct., App. Div., 1960)
Gladstone v. Treasurer & Receiver General
147 N.E.2d 786 (Massachusetts Supreme Judicial Court, 1958)
Chapman v. Davis
45 N.W.2d 822 (Supreme Court of Minnesota, 1951)
Kowalke v. Lutheran Welfare Society
46 N.W.2d 275 (Supreme Court of Minnesota, 1950)
In Re Guardianship of Kowalke
46 N.W.2d 275 (Supreme Court of Minnesota, 1950)
Hopkins v. Commissioner of Corporations & Taxation
68 N.E.2d 659 (Massachusetts Supreme Judicial Court, 1946)
Rolfe v. Walsh
64 N.E.2d 16 (Massachusetts Supreme Judicial Court, 1945)
Ronan v. Bennett
9 Mass. App. Div. 89 (Mass. Dist. Ct., App. Div., 1944)
Cassen v. Cassen
51 N.E.2d 976 (Massachusetts Supreme Judicial Court, 1943)
Munson v. Bay State Dredging & Contracting Co.
50 N.E.2d 633 (Massachusetts Supreme Judicial Court, 1943)
Rummel v. Peters
51 N.E.2d 57 (Massachusetts Supreme Judicial Court, 1943)
Andrews v. Petrie
8 Mass. App. Div. 248 (Mass. Dist. Ct., App. Div., 1943)
Mock v. John P. Condon Corp.
7 Mass. App. Div. 174 (Mass. Dist. Ct., App. Div., 1942)

Cite This Page — Counsel Stack

Bluebook (online)
34 N.E.2d 668, 309 Mass. 187, 1941 Mass. LEXIS 768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-holland-mass-1941.