Cochran v. M & M TRANSP. CO.

Decision Date07 June 1940
Docket NumberNo. 3552.,3552.
Citation112 F.2d 241
PartiesCOCHRAN et al. v. M & M TRANSP. CO.
CourtU.S. Court of Appeals — First Circuit

John W. Baker, of Providence, R. I. (Benjamin F. Lindemuth, F. Snowden Skinner, and Daniel S. T. Hinman, all of Providence, R. I., on the brief), for appellants.

William A. Gunning, of Providence, R. I., for appellee.

Before MAGRUDER, Circuit Judge, and PETERS and FORD, District Judges.

MAGRUDER, Circuit Judge.

Earlier phases of this litigation are reported in M & M Transportation Co. v. Cochran, 1 Cir., 100 F.2d 207, and in Cochran v. M & M Transportation Co., 1 Cir., 110 F.2d 519.

We now have before us appeals by the plaintiffs from judgments for the defendant entered upon verdicts for the defendant on counts alleging simple negligence.

On the night of November 16, 1936, a motor-truck of the Providence Teaming Company, operated by its servant Cochran, became stalled on a Massachusetts highway. Shortly thereafter a motor-truck driven by a servant of the M & M Transportation Company crashed into it from the rear. The resulting fire consumed both vehicles. Cochran received severe personal injuries. Cochran and the Providence Teaming Company brought their separate actions for damage to person and to property, respectively. These actions have been consolidated for purposes of appeal.

Issues as to negligence and contributory negligence were submitted to the jury. There was also a charge relating to the Massachusetts trespasser-on-the-highway doctrine, the applicability of which to the facts of this case is the principal point presented on the present appeal.

The plaintiff Providence Teaming Company is a Rhode Island corporation. Its truck had been duly registered under the Rhode Island law, and though it carried sufficient liability insurance to satisfy the requirements of the Massachusetts law, no registration had been procured in Massachusetts, nor had the said plaintiff obtained from the Registrar of Motor Vehicles the nonresident permit required by Massachusetts law as a prerequisite to lawful operation in Massachusetts beyond a period of thirty days after the date of entry of the vehicle in any one year.1 The court below charged the jury that if the truck had been operated on the highways of Massachusetts beyond a period of thirty days during 1936 (as to which the evidence was contradictory) without a permit from the Registrar of Motor Vehicles, then neither plaintiff could recover for damages resulting from ordinary negligence, because under the Massachusetts rule the defendant in that event owed no duty other than to refrain from inflicting wilful or wanton injury. Objection by the plaintiffs was duly made to the charge in this particular.

The general rule is well settled in Massachusetts that the owner of a motor vehicle not properly registered in compliance with the Massachusetts law cannot recover for property damage resulting from a highway accident, nor can the operator of such vehicle recover for personal injuries, unless the defendant is guilty of wilful and wanton misconduct. Love v. Worcester Consolidated Street Ry., 213 Mass. 137, 99 N.E. 960; Dean v. Boston Elevated Ry., 217 Mass. 495, 105 N.E. 616; Wentzell v. Boston Elevated Ry., 230 Mass. 275, 119 N.E. 652; Ricker v. Boston Elevated Ry., 290 Mass. 111, 194 N.E. 815. This so-called trespasser-on-the-highway doctrine has been extended to the operation of non-resident vehicles without the requisite permit from the Registrar of Motor Vehicles. Dudley v. Northampton Street Ry., 202 Mass. 443, 89 N. E. 25, 23 L.R.A.,N.S., 561; Jenkins v. North Shore Dye House, Inc., 277 Mass. 440, 178 N.E. 644.

It is contended by the plaintiffs that since at the time of the collision the truck was stalled on the side of the highway it was not then being "operated" within the meaning of the statute, citing Norcross v. B. L. Roberts Co., 239 Mass. 596, 132 N.E. 399, 400. In that case, the plaintiff went to Oxford Heights to get his motorcycle, intending to return with it to Worcester. Finding the engine frozen he proceeded to push the motorcycle along the highway to Worcester, a distance of a few miles. While thus proceeding slowly on the extreme right side of the road he was run into by the defendant's truck coming from the rear. The trial judge submitted to the jury the question, "Was the plaintiff riding and operating his machine at the time of the accident?", to which the jury answered in the negative. The plaintiff obtained a verdict. In overruling the defendant's exceptions, the Supreme Judicial Court said that "the plaintiff was no more operating the machine, within the contemplation of the statute, than if he had been conveying it in a wheelbarrow". But subsequent decisions have confined the ruling in the Norcross case narrowly to the particular facts there presented. It is clear that under the facts in the case at bar the trespasser-on-the-highway doctrine is applicable. In Jenkins v. North Shore Dye House, Inc., 277 Mass. 440, 178 N.E. 644, 646, where the plaintiff's intestate, a non-resident, was on a Massachusetts highway with a motor vehicle without having obtained the required permit from the Registrar, the court said: "The circumstance that the deceased may have been upon the road examining his own automobile at the time of his injury did not prevent the decedent from being found to be operating his automobile contrary to law and being an outlaw upon the highway." Again, in DiCecca v. Bucci, 278 Mass. 15, 178 N.E. 447, it appeared that the plaintiff's automobile, at the time of the collision, was stopped beside the road while some of the occupants had gone to get gasoline; it was held that the plaintiff could not recover for ordinary negligence, the court saying that: "The automobile was being `operated' within the meaning of the statute." 278 Mass. at page 17, 178 N.E. at page 448. See, also, Cook v. Crowell, 273 Mass. 356, 173 N.E. 587; Bellenger v. Monahan, 282 Mass. 523, 185 N.E. 346. The fact that the individual plaintiff Cochran, the employee of the corporate plaintiff, might not have known or have had reasonable cause to know that the truck was being operated illegally without a permit would not save him from being treated as a trespasser on the highway, since he was the "operator" of the truck. Mass.G.L.(Ter.Ed.) c. 90, § 9; Furtado v. Humphrey, 284 Mass. 570, 188 N.E. 391. Such is the harsh Massachusetts doctrine; the court below was bound to apply it. Ewell v. Cardinal, 53 R.I. 469, 167 A. 533; Erie Railroad Co. v. Tompkins, 304 U. S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A. L.R. 1487.

Error is also assigned in that the trial judge refused to charge, as requested, that the Massachusetts statute requiring a permit for the operation of a non-resident motor vehicle, "in so far as it may have applied to a non-resident motor truck being driven on a Massachusetts highway on November 16, 1936 in the interstate business of handling freight to a destination outside of the State of Massachusetts, had then been abrogated and suspended by the Federal Motor Carrier Act of 1935" 49 U.S.C.A. § 301 et seq.. We think this point is not well taken.

At the date of the accident, the Massachusetts statute made it illegal to operate for more than thirty days a non-resident motor vehicle not registered in Massachusetts, without compliance with two conditions precedent, first, the owner must have procured a specified policy of liability insurance, and, second, the owner must have procured a non-resident permit to be issued by the Registrar after that official had satisfied himself that the owner had in force the proper liability policy. The second is an administrative provision...

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