Davis v. Simpson

• Decision Date: 05 December 1941
• Parties: DAVIS v. SIMPSON (two eases).
• Court: Maine Supreme Court

23 A.2d 320

DAVIS

v. SIMPSON (two eases).

Supreme Judicial Court of Maine.

Dec. 5, 1941.

Exceptions from Superior Court, Knox County.

Actions by Marcia Davis against Fred Simpson for damages resulting from an automobile collision. Referees reported that in each case plaintiff was entitled to judgment, and from the acceptances of such reports, defendant brings exceptions.

Exceptions overruled in both cases.

Argued before STURGIS, C. J., and THAXTER, HUDSON, MANSER, WORSTER, and MURCHIE, JJ.

Frank A. Tirrell, Jr., of Rockland, for plaintiff.

Zelma M. Dwinal, of Camden, for defendant.

HUDSON, Justice.

These cases involving an automobile collision at a street intersection in the town of Camden were heard by referees who reported that in each the plaintiff was entitled to judgment. Exceptions were taken to the acceptances of the reports. Presented are two questions: viz., whether the plaintiff had the status of a trespasser at the time of the accident and whether she was guilty of contributory negligence.

The plaintiff's unlicensed daughter, fourteen years old, was driving accompanied by her mother who was licensed. Sec. 39 of Chap. 29, R.S.1930, provides: "No person shall operate a motor vehicle upon any way in this state unless licensed according to the provisions of this chapter; but the provisions of this section shall not prevent the operation of a motor vehicle by an unlicensed person, not less than fifteen years of age, if riding beside a licensed operator in said vehicle for the purpose of becoming familiar with the use and handling of a motor vehicle preparatory to taking out license for driving; and provided, further, that such unlicensed person has not theretofore had a license revoked, suspended, or finally refused."

Sec. 33 of said Chap. 29, as amended by Chap. 46 of the Public Laws of 1937, reads in part: "Before the license is granted, an applicant shall be required to pass such physical examination and such examination by actual demonstration or otherwise as to his qualifications to operate a motor vehicle as the said secretary shall require; provided said secretary may waive such examinations in the case of applicants who have been duly licensed by this state to operate a motor vehicle during any one of the 3 preceding calendar years; and no license shall be issued until the said secretary is satisfied that the applicant is a proper person to receive it. No license shall be issued to any person under 15 years of age."

The plaintiff's daughter had not arrived at the age when she could lawfully learn to drive, but nevertheless she had been driving for over a year and was considered by her father, who ran a garage, and by her mother as well to be a competent and experienced driver. There was no evidence to the contrary. But at the time she was not learning to drive and consequently was acting in violation of law. It is not contended that she was the agent or servant of the plaintiff.

First exception. Was she a trespasser so that the duty of others lawfully on the highway both to her and her mother, the plaintiff, was simply "to refrain from wilful and wanton injury"? The precise point seems not to have been determined in this state, but that one who operates an unregistered motor vehicle on the highway is not a trespasser was determined in Cobb v. Cumberland County Power & Light Company, 117 Me. 455, 104 A. 844. In the recent case of Elliott v. Montgomery, 135 Me. 372, on page 375, 197 A. 322, on page 323, this court quoted as follows from the opinion in the Cobb case: "Such violation (of the registration statute) may in certain cases be evidence of negligence, but it is not conclusive. * * * The application of this governing rule to the case at bar is obvious. The nonregistration had no causal connection with the accident whatever. It no more contributed to the collision in this case than did the color of the car."

Thus, it is settled law in this jurisdiction that one operating an unregistered motor vehicle is not a trespasser and may recover for injuries proximately caused by negligent acts of another (not a municipality), unless his violation of law is a proximate cause of the accident, but such violation is prima facie evidence of negligence. "* * * The right of a person to maintain an action for a wrong committed upon him is not taken away because at the time of the injury he was disobeying a statute, provided this disobeyance in no way contributed to the injury. He is not placed outside the pale of the law merely because he was committing a misdemeanor. That would be a wrong to the public, but not to the other party in the civil action." Cobb v. Cumberland County Power & Light Company, supra, 117 Me. on page 462, 104 A. on page 847.

In the Cobb case, supra, decisions from other states are cited, among which particularly is Dudley v. Northampton Street Railway Co., 202 Mass. 443, 89 N.E. 25, 23 L.R.A., N.S., 561, holding differently. Distinguished are McCarthy v. Inhabitants of Town of Leeds, 115 Me. 134, 98 A. 72, L.R.A.1916E, 1212 and McCarthy, Adm'r, v. Inhabitants of Leeds, 116 Me. 275, 101 A. 448. L.R.A.1918D, 671, both town cases for recovery of damages on account of defects in highways, where it was held that such were not maintainable because they were statutory actions and the rights of the travelling public and the liability of the municipality were limited.

The doctrine of the McCarthy cases, supra, is extended to the operation of an automobile on the highways by an unlicensed operator in Blanchard v. City of Portland, 120 Me. 142, on page 145, 113 A. 18, on page 19, where it is stated: "It must follow that the highways of the state are closed alike to unregistered motor vehicles and to unlicensed operators. * * * In actions against towns to enforce a statutory liability for defects in the highways, it is not a question of causal connection in either case between the violation of the statute and the happening of the accident; the unregistered car and the unlicensed operator are alike expressly forbidden by the statute to pass along the highway."

This court does not follow the Massachusetts decisions in holding "an unregistered car a trespasser and an outlaw, having no rights which even a negligent party is bound to respect, and to whose occupants no duty is owed by the traveling public, except to refrain from willful and wanton injury." Cobb v. Cumberland County Power & Light Company, supra, 117 Me. on page 458, 104 A. on page 845.

Note is taken that in the Cobb case mention is made of Bourne v. Whitman, 209 Mass. 155, 169, 95 N.E. 404, 35 L.R.A., N.S., 701, "where it was held that an operator, who has violated the statute, which provides that 'no person shall operate an automobile * * * unless specially licensed,' etc., may recover in an action of tort; his unlawful act being regarded as punishable under another section of the statute, but not as rendering him a trespasser on the highway." Cobb v. Cumberland County Power & Light Company, supra, 117 Me. on page 459, 104 A. on page 846.

It would appear that there is at least an inferential dictum in the Cobb case, supra, that an unlicensed operator is not a trespasser on the highway except as to municipalities and so is entitled while thereon to observance of due care on the part of other travellers.

We see no valid distinction between the case of an unregistered vehicle and an unlicensed operator, which would justify holding the latter a trespasser and the former not. These statutes seek the same end, safety of travellers upon the highways, and should be attended, when violated, with like legal consequences. The violator of the license statute should not be held entitled to a less degree of care upon the part of other travellers than the violator of the registration statute.

The weight of authority it would seem is in accord with this view. In Sec. 141, 5 Am.Jur., it is...