Fairbanks v. Kemp

De Courcy, J. The plaintiff’s intestate was struck and killed by a motor car operated by the defendant; and this action under R. L. c. 171, § 2, as amended by St. 1907, c. 375, is brought to recover damages for her death. The judge of the Superior Court, sitting without a jury, found in favor of the plaintiff and assessed damages in the sum of $2,250. Being dissatisfied with the amount, he brings the case before this court on exceptions to some of the judge’s rulings and refusals to rule. The rulings in question relate to the registration of the car that caused the injuries. The application for registration was dated November 9, 1914, and was signed by Horace G. Kemp, then [78] the owner. The certificate of registration was dated January 1, 1915, and expired December 31 of that year. Horace G. Kemp died before the registration took effect, namely, on December 27, 1914. The defendant, who is his widow and one of the executors of his will, placed the registration numbers on the car in March, 1915, when it first was taken out. The accident occurred on Labor Day, September 6, 1915. The statute relative to motor vehicles (St. 1909, c. 534, § 2, as amended by St. 1912, c. 400) expressly provides that “Application for the registration of motor vehicles may be made by the owner thereof.” The certificate issued thereon by the highway commission “shall contain the name, place of residence and address of the applicant . . . and contain such further information as the commission may determine.” Further, “Upon the transfer of ownership of any motor vehicle its registration shall expire;” but the owner may obtain a rebate, or may register in his name another motor vehicle for the remainder of the year. It is apparent from these and other provisions of the statute that the Legislature intended that a motor vehicle should be registered in the name of its owner. Downey v. Bay State Street Railway, 225 Mass. 281. Presumably one purpose aimed at was to afford to travellers on the highway means of redress, by enabling them to ascertain easily the name and address of the owner of a motor vehicle that occasions injury to them. See Holden v. McGillicuddy, 215 Mass. 563; Gould v. Elder, 219 Mass. 396. In the case at bar, Horace G. Kemp was the owner of the car in November, 1914, when he applied for registration for the calendar year 1915. The commission intended to issue the certificate to him and to no one else; and were not informed that he died some days before it was to go into effect. In these circumstances it never attached, and plainly could not protect the defendant in September, 1915. It was as ineffective as a deed of a present estate of possession to a grantee not in existence, see 18 Ann. Cas. 871, note; or a policy of life insurance where the applicant dies before it is issued. Marks v. Hope Mutual Life Ins. Co. 117 Mass. 528. Rogers v. Charter Oaks Life Ins. Co. 41 Conn. 97. And see Brooks v. Boston & Northern Street Railway, 211 Mass. 277. The motor car which the defendant was driving was not legally registered. Under the law of this Commonwealth it was regarded as a nuisance, [79] and the driver as a trespasser, upon the public way. Chase v. New York Central & Hudson River Railroad, 208 Mass. 137. Conroy v. Mather, 217 Mass. 91, 94. Dean v. Boston Elevated Railway, 217 Mass. 495. And the defendant, who was operating this machine in violation of law at the time of the accident, was responsible to the plaintiff if her unlawful act directly contributed to the intestate’s injury. Gately v. Taylor, 211 Mass. 60, 64, and cases cited. Boston Ferrule Co. v. Hills, 159 Mass. 147. It follows that the trial judge erred in making the rulings requested by the defendant. The error in granting the requests numbered 2, 3 and 4, which relate to the issue of liability only, did not harm the plaintiff, however, because the judge found in his favor on that issue. It is immaterial to him that the finding was based on the negligent operation of the car and not on the absence of a legal registration. But we cannot say the same as to the first request, which we construe as applying to all the issues raised by the pleadings, including that of damages. The degree of culpability of the defendant well might be greater if she was wilfully driving as an outlaw on the highway, than it would be if she had scrupulously observed all the requirements of the law. See Berdos v. Tremont & Suffolk Mills, 209 Mass. 489. It cannot be said that the judge would not have assessed the damages at a larger amount if he had taken into consideration the fact of the illegal registration. The exception to the giving of this request must be sustained. The trial judge rightly refused to give the ruling requested by the plaintiff, that “The defendant was driving an illegally registered machine, she was therefore an outlaw on the public highway, and her act in running down and killing Mrs. Fairbanks constituted the maximum, degree of culpability under St. 1907, c. 375.” After the judge had determined the question of liability the issue of damages remained to be considered by him. The statute which gives the plaintiff her right of action expressly provides that the amount recoverable must be assessed with reference to the degree of culpability of the defendant, and within a fixed maximum and minimum. The blameworthiness of each wrongdoer must be judged by his conduct in the light of the attendant circumstances. The statute recognizes that there must be varying degrees of culpability in the different cases that may arise; and, within the fixed [80] limits, it provides for the appropriate amount of damages. There is no warrant for the construction contended for in the plaintiff’s request, namely, that the maximum amount must be awarded in every case where the death is occasioned by an unregistered motor vehicle. Boott Mills v. Boston & Maine Railroad, 218 Mass. 582. In consequence of the ruling made on the first request of the defendant, the entry must be Exceptions sustained.