Franco v. West Boston Gas Co.

• Decision Date: 29 February 1928
• Citation: 160 N.E. 326,262 Mass. 387
• Parties: DI FRANCO v. WEST BOSTON GAS CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 387

160 N.E. 326

DI FRANCO

v.WEST BOSTON GAS CO.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 29, 1928.

Exception from Superior Court, Middlesex County; Joseph Walsh, Judge.

Action by Gennaro Di Franco, administrator, against the West Boston Gas Company. Verdict was directed for defendant, and plaintiff brings exceptions. Exceptions sustained.

J. J. O'Connor, of Boston, for plaintiff.

K. C. Parker, of Boston, for defendant.

CARROLL, J.

According to the record, this action of tort is for the death and conscious suffering of Antonio Di Franco, a child eight years and six months old. At the conclusion of the evidence a verdict for the defendant was directed.

The bill of exceptions recites that the death of the deceased was the result ‘of being in contact with an auto truck owned and controlled by the defendant and driven at the time of the accident by its servant one Carr acting within the scope of his employment.’ The accident happened on July 23, 1924. It was admitted that Waverly street in Framingham is a public street; and that the registration number of the automobile truck involved in the accident was 12855. There was evidence that the engine number of this truck was 4592822; that it was registered under the number 263313, and a letter from the defendant to the registry of motor vehicles dated July 24, 1924, acknowledging there was an error in the engine number and asking that the error be corrected was introduced. In directing the verdict for the defendant, the trial judge stated to the jury:

‘I am ruling as a matter of law that the vehicle of the defendant company was improperly registered, and I am further ruling as a matter of law that notwithstanding that the vehicle * * * was an improperly registered vehicle, the plaintiff has not proven upon all the evidence * * * that the defendant company through the operator of this vehicle was negligent aside from the fact that the vehicle was improperly registered. To this ruling and my direction of a verdict for the defendant, the plaintiff's exceptions may be noted.'

[1][2] The defendant's automobile was registered under an erroneous engine number; its registration therefore was illegal and it was a trespasser upon the highway. Staley v. Wilbur, 258 Mass. 481, 155 N. E. 659;Wallace v. New Bedford & Onset Street Railway, 259 Mass. 20, 155 N. E. 660. As its presence on the highway was in itself unlawful, the defendant was a wrongdoer and liable for all direct injury resulting from its use, even though the injury to the intestate could not have been contemplated as the result of the act done. Koonovsky v. Quellette, 226 Mass. 474, 116 N. E. 243, Ann. Cas. 1918B, 1146. In Fairbanks v. Kemp, 226 Mass. 75, 115 N. E. 240, it was held that an instruction to the effect that the improper registration of the automobile is no evidence of negligence was error.

Although the bill of exceptions states that a recovery is sought for conscious suffering and death, there was no evidence to show that the deceased consciously suffered, and the declaration contained but one count, which was to recover under the death statute. This statute (G. L. c. 229, § 5, as amended...