Pierce v. Hutchinson

Crosby, J. This is an action to recover for personal injuries. [561] received by the plaintiff when he was run into by a Ford runabout on August 26, 1916. The plaintiff, who had been a passenger on an electric car just before the accident, alighted from the car at a regular stopping place, and while proceeding toward the sidewalk was struck and knocked down by the runabout driven by one Keegan who was then acting as chauffeur for Edward Gruber, who sat beside him. Keegan was not in the defendant’s employ. In the spring of 1916 the machine in question was owned by Charles P. Rogers and duly registered in his name under number 52108; he died some time before June of that year. “There was no administration of his estate” but his widow undertook to sell the runabout in June, 1916, to the defendant through his agent who paid $310 for it; the defendant then took and thereafter retained possession of it in his garage. At that time the number plates bearing Rogers’ number were attached to it and were not afterwards removed nor were any other number plates placed on it before the time of the accident. The defendant obtained from the Massachusetts Highway Commission for the year 1916 an automobile dealer’s license number 0866, and had in his garage half a dozen number plates bearing that number. He never gave any instructions to have any of these plates attached to the runabout although he knew it was in his garage. He entrusted the running of the garage to one Stearns as manager. The largest part of the business there conducted was the selling of cars; and a Ford agency and service station were maintained there for the sale, storage, renting and repairing of Ford cars. The defendant testified that he did not spend much of his time at the garage, that he operated three grocery and provision stores and also carried on a farm. The record recites that on the afternoon of August 25, 1916, Stearns, “acting within the scope of his authority, made an oral agreement with said Gruber for the letting of said runabout to said Gruber for three days to take a trip. Under the agreement Gruber was to supply his own chauffeur, pay por] his own gasolene, and return the car in as good condition as it was when he took it, outside of wear and tear, and pay the defendant a certain sum per day for the use of the car. The accident happened while the car was being used by Gruber and driven by Keegan under [562] this arrangement.” When the car was taken from the garage by Keegan, the defendant was not present; later in the day Keegan and Gruber returned in the car and complained about its condition, and the defendant got into it with Keegan, drove a short distance, returned to the garage and again delivered it to Keegan; stating to them that “it was all right.”» The car was not again in the garage until after the accident. The amended declaration contains five counts. The presiding judge directed a verdict for the defendant on the first and second; and, subject to the defendant’s exception, submitted the third, fourth and fifth to the jury, instructing them however that the evidence did not warrant a verdict for the plaintiff on any of these counts charging the defendant with liability by reason of permitting an automobile in a dangerous and defective condition to be upon the highways. The statute requires that the person in whose name a motor vehicle is registered shall be the owner thereof. St. 1909, c. 534, § 2, as amended by St. 1912, c. 400, § 1. It is also provided by St. 1909, c. 534, § 4, that "Every manufacturer of or dealer in motor vehicles may make application, by mail or otherwise, . . . for a general distinguishing number or mark, instead of registering each motor vehicle owned or controlled by him . . . and the commission may grant the application . . . and, issue to the applicant a certificate of registration. . . .” These statutes make it plain that only the owner, or, if a dealer or manufacturer, the person either owning or in control of a motor vehicle is entitled to registration. Gould v. Elder, 219 Mass. 396. Downey v. Bay State Street Railway, 225 Mass. 281. Shufelt v. McCartin, 235 Mass. 122. Harlow v. Sinman, ante, 462. We need not determine whether the defendant was the owner of the runabout, as there was ample evidence to warrant a finding that it was controlled by him withiti the meaning of § 4. The registration in the name of Rogers who died before June, 1916, could not protect the defendant. The important question is: Was the automobile legally registered in the name of the defendant as a dealer? While a certificate of registration as a dealer was duly issued to the defendant and the issuance of such a certificate creates a presumption that he is lawfully entitled to it, yet it is not conclusive evidence as [563] against the plaintiff. Gould v. Elder, supra. Koonovsky v. Quellette, 226 Mass. 474. Upon the evidence it was for the jury to determine whether the defendant was in fact a dealer and entitled to the general distinguishing number or mark assigned to him. The statutory definition of the word “dealer” in force in 1916 includes “every person who is engaged principally in the business of buying, selling or exchanging motor vehicles, on commission or otherwise, or whose principal business is the renting of motor vehicles.” St. 1909, c. 534, § 1, as amended by St. 1915, c. 16, § 1. The majority of the court construe the definition of "dealer” as including every person whose business as a whole is principally that of buying, selling or exchanging motor vehicles on commission or otherwise, or whose principal business is the renting of motor vehicles. The contention of the defendant is that the statute refers only to the business conducted at his garage and that if his business there has the required characteristics he is a dealer under the statute. We cannot agree with that contention. It is contrary to the plain meaning of the definition. The judge correctly construed the statute in his instructions to the jury. The evidence was undisputed that besides running the garage the defendant was engaged in operating three grocery and provision stores and that he carried on a farm and spent but little of his time at the garage, which he entrusted to the management of Stearns. From this evidence and the rational inferences to be drawn therefrom, we cannot say that the jury were not warranted in finding, as they did find in answer to a special question submitted to them, that on August 25, 1916, the defendant was not a person engaged principally in the business of buying, selling or exchanging motor vehicles on commission or otherwise, or whose principal business was the renting of motor vehicles. The result is that the runabout was not legally registered but was a nuisance upon the highway, and the driver a trespasser. Dudley v. Northampton Street Railway, 202 Mass. 443. Chase v. New York Central & Hudson River Railroad, 208 Mass. 137. Bourne v. Whitman, 209 Mass. 155. Gould v. Elder, supra. Fairbanks v. Kemp, 226 Mass. 75. Gondek v. Cudahy Packing Co. 233 Mass. 105. If the automobile had been legally registered in the name of the defendant, it was illegally operated on the highway at the time of the accident as it did not have its regular number dis [564] played conspicuously thereon on two number plates in accordance with St. 1909, c. 534, §§ 5 and 9. At that time the only number plates attached were those issued to Rogers; their use was not a compliance with the statute. The evidence warranted findings that the runabout, while under the control of the defendant, was rented by him through his agent, acting within the scope of his authority, to Gruber for three days; that he allowed it to be operated at the place of the accident, not only without registration, but without lawful and proper number plates. If the jury found these facts, the machine was an outlaw upon the highway and the defendant would be liable for any injury caused by it to the plaintiff regardless of whether any negligence of the driver contributed to the injury. Dudley v. Northampton Street Railway, supra. Chase v. New York Central & Hudson River Railroad, supra. Koonovsky v. Quellette, supra. Evans v. Rice, 238 Mass. 318. The ground of liability is the illegal act of the defendant in permitting or allowing an unregistered car, without lawful number plates, to be operated upon the highways, and is wholly distinct from an act of negligence. Evans v. Rice, supra. We need not consider whether contributory negligence of the plaintiff would be a bar to recovery, as the jury expressly found in answer to a special question submitted to them that want of due care on the part of the plaintiff did not directly contribute to the accident. It follows that the exceptions to the giving of the plaintiff’s eighth request and the refusal to give the'defendant’s nineteenth are immaterial. The jury were told that the plaintiff might rely to some extent upon the belief' that the driver of the automobile would observe the law; that instruction was correct. DiIorio v. Jordan Marsh Co. 211 Mass. 280. The jury could have found that the plaintiff was called upon to act in a sudden emergency. If they so found, the instructions given on this branch of the case and which related to his care were in accordance with well settled principles. Lemay v. Springfield Street Railway, 210 Mass. 63, 67. Many of the exceptions have not been argued and are treated as waived. We find no error in the rulings made, in the refusals to rule, or in the instructions given. Exceptions overruled.