Fairbanks v. Kemp

• Decision Date: 27 February 1917
• Citation: 115 N.E. 240,226 Mass. 75
• Parties: FAIRBANKS v. KEMP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 75

115 N.E. 240

FAIRBANKS

v.KEMP.

Supreme Judicial Court of Massachusetts, Essex.

Feb. 27, 1917.

Exceptions from Superior Court, Essex County; W. P. Hall, Judge.

Action by Vivian G. Fairbanks, as administratrix, against Edythe M. Kemp. On trial before the judge of the superior court without a jury, the court found for plaintiff and assessed the damages at an unsatisfactory sum, and the plaintiff excepts. Exceptions sustained.Starr Parsons, H. Ashley Bowen, and Chas. D. C. Moore, all of Lynn, for plaintiff.

Henry R. Mayo, of Lynn, for defendant.

DeCOURCY, J.

The plaintiff's intestate was struck and killed by an automobile 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, she 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 automobile that caused the injuries. The application for registration was dated November 9, 1914, and was signed by Horace G. Kemp, then the owner. The certificate of registration was dated January 1, 1915, and expired December 31st 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 automobile in March, 1915, when it was first taken out. The accident occurred on Labor Day, September 6, 1915.

[1] 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 an automobile should be registered in the name of its owner. Downey v. Bay State St. Ry., 225 Mass. 281, 114 N. E. 207. Presumably one purpose aimed at was to afford to travelers on the highway means of redress, by enabling them to ascertain easily the name and address of the owner of an automobile that occasions injury to them. See Holden v. McGillicuddy, 215 Mass. 563, 102 N. E. 923.Gould v. Elder, 219 Mass. 396, 107 N. E. 59. In the case at bar, Horace G. Kemp was the owner of the automobile 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 Oak Life Ins. Co., 41 Conn. 97. And see Brooks v. Boston & Northern Ry., 211 Mass. 277, 97 N. E. 760. The automobile which the defendant was driving was not legally registered.

[2] Under the law of this commonwealth it was regarded as a nuisance, and the driver as a trespasser, upon the public way. Chase v. N. Y. C. & H. R. R., 208 Mass. 137, 94 N. E. 377;Conroy v. Mather, 217 Mass. 91, 94, 104 N. E. 487,52 L. R. A. (N. S.) 801;Dean v. Boston Elev. Ry., 217 Mass. 495, 105 N. E. 616. 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, 97 N. E. 619,39 L. R. A. (N. S.) 472, and cases cited. Boston Ferrule Co. v. Hills, 159 Mass. 147, 34 N. E. 85,20 L. R. A. 844.

[4] It follows that the...