Downey v. Bay State St. Ry. Co.

• Decision Date: 29 November 1916
• Citation: 114 N.E. 207,225 Mass. 281
• Parties: DOWNEY v. BAY STATE ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 281

114 N.E. 207

DOWNEY

v.BAY STATE ST. RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 29, 1916.

Report from Superior Court, Suffolk County; W. P. Hall, Judge.

Action by Julia V. Downey against the Bay State Street Railway Company. On report, Judgment for plaintiff on verdict.

1. STREET RAILROADS k83-INJURIES TO PERSONS ON STREETS-MOTOR CARS-LICENSE.

Under St. 1909, c. 534, s 10, declaring that no person shall operate a motor vehicle unless duly licensed, no recovery can be had for an accident resulting solely from the negligence of the defendant street car company, unless plaintiff's motor truck which came into collision with defendant's car had been registered as provided.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. ss 179, 180; Dec. Dig. k83.]

2. LICENSES k20-MOTOR VEHICLES-‘OWNER.’

St. 1909, c. 534, s 2, as amended by St. 1912, c. 400, s 1, provides that application for the registration of motor vehicles may be made by the owner thereof. Statutes prior to 1908 uniformly provided that registration should be effected by the owner or person in control thereof, the latter clause being omitted in the act of 1909. Plaintiff bought a motor truck under a conditional contract of sale, a bill of sale to be given when the full price was paid, plaintiff having the unqualified right of possession and use of the truck untildefault in payment. Held, that as section 4 of St. 1909, providing for a distinguishing mark to be furnished manufacturers and dealers instead of registering each vehicle owned or controlled by them, refers only to vehicles remaining in their possession and under then control, the word ‘owner’ must be deemed to include a person in possession of the motor car under a contract for purchase under installments, for otherwise such person would be precluded from using his vehicle on the highway, so plaintiff's registration was sufficient.

[Ed. Note.-For other cases, see Licenses, Cent. Dig. s 55; Dec. Dig. k20.

For other definitions, see Words and Phrases, First and Second Series, Owner.]

John E. Crowley and Jas. E. O'Connell, both of Boston, for plaintiff.

Henry F. Hurlburt, Jr., and Abbot P. Mills, both of Boston, for defendant.

BRALEY, J.

[1][2] It is settled that even if the accident could be found to have been caused solely by the defendant's negligence, the plaintiff cannot recover unless her auto truck which came into collision with the defendant's car had been registered. St. 1909, c. 534, § 10; Dudley v. Northampton St. Ry., 202 Mass. 443, 89 N. E. 25,23 L. R. A. (N. S.) 561. The St. of 1909, c. 534, § 2, as amended by St. 1912, c. 400, § 1, provides that application for the registration of motor vehicles may be made by ‘the owner thereof’ in the manner there prescribed, and the report under which the case is before us states that a certificate of registration had been issued to the plaintiff ‘as owner.’ But if the presumption of compliance with the statutory requirements was sufficient until rebutted, the defendant contends, that the plaintiff's evidence of title is insufficient to bring her within the provisions of the statute. Trombley v. Stevens Duryea Co., 206 Mass. 516, 518, 92 N. E. 764. The St. of 1903, c. 473, § 1, St. 1905, c. 311, § 2, St. 1906, c. 412, § 1, St. 1907, c. 580, § 1, and St. 1908, c. 648, § 3, having uniformly provided that registration should be effected by the owner or ‘person in control thereof,’ and the St. of 1909, c. 534, § 2, as amended by St. 1912, c. 400, § 1, having omitted the words ‘person in control thereof,’ the defendant contends, that the plaintiff is barred from recovery unless she held the absolute title. The plaintiff bought and operated the truck under a conditional contract of sale by the terms of which a bill of sale was to be given when the purchase price had been fully paid. Smith v. Aldrich, 180 Mass. 367, 62 N. E. 381. And until default in payment of the promissory notes given as collateral security for the performance of the contract, she was given the unqualified right of possession, of use and of management, as if the truck...