Liddell v. Middlesex Motor Co.

• Citation: 175 N.E. 737,275 Mass. 346
• Parties: LIDDELL v. MIDDLESEX MOTOR CO. et al.
• Decision Date: 16 April 1931
• Court: United States State Supreme Judicial Court of Massachusetts

275 Mass. 346

175 N.E. 737

LIDDELL

v.MIDDLESEX MOTOR CO. et al.

Supreme Judicial Court of Massachusetts, Middlesex.

April 16, 1931.

Report from Superior Court, Middlesex County; F. J. Macleod, Judge.

Action by Chester Liddell, p. p. a., against the Middlesex Motor Company and others, in which a verdict was directed for plaintiff. On report.

Judgment entered for plaintiff on verdict.

J. F. Daly, of Boston, for plaintiff.

Warner, Stackpole, Bradlee & Cabot, R. J. Cotter, and G. B. Rowell, all of Boston, for defendant Middlesex Motor Co.

SANDERSON, J.

This is an action of tort for personal injuries to the plaintiff, a boy five years of age, caused by an automobile driven by Louise Fee, on a public way in Cambridge on March 9, 1927. At the conclusion of the evidence counsel entered into a stipulation that the judge would submit to the jury the issues of due care and damages, and if the jury found that the plaintiff was in the exercise of due care and assessed damages, the judge would direct a verdict for the plaintiff in the sum found by the jury and report the case to the Supreme Judicial Court upon the terms that if on the competent evidence the jury might properly have found for the plaintiff the verdict was to stand, otherwise judgment was to be entered for the defendant. The jury found that the plaintiff was in the exercise of due care and assessed damages in a stated sum. Thereupon a verdict was directed for the plaintiff in that sum and in accordance with the stipulation the case was reported to this court.

The defendants described in the writ are Middlesex Motor Company, ‘a corporation duly established by law and having a usual place of business in Concord,’ and Louise Fee. On August 6, 1928, before the case went to trial on the merits, judgment was entered in favor of Louise Fee following a nonsuit because of the failure of the plaintiff to answer interrogatories propounded to him by her. The substituted declaration filed in 1930 alleges that Louise Fee was operating the automobile negligently and was unlawfully upon the highway, the automobile not having been duly registered; ‘that the defendant his agents or servants, unlawfully and without right loaned to the said Fee or to some other person’ certain registration plates issued to the defendant by the registrar of motor vehicles for the commonwealth of Massachusetts; that these number plates were attached to the car driven by Fee in violation of the laws of the commonwealth; and that the plaintiff was injured as a result of the defendant's contribution to and creation of a nuisance. The answer purporting to be made by the defendant ‘Middlesex Motor Company’ is a general denial, contributory negligence and, by amendment in 1930, the defence was set up that at the time of the accident the motor car was being operated by and under the control of a person for whose conduct that defendant was not legally responsible. The substituted declaration seems to base liability so far as the Middlesex Motor Company is concerned solely upon proof of a nuisance for which that defendant is legally responsible. The record states that the ‘plaintiff's claim is that the defendant by loaning its number plates to one Francis P. Fee contributed to cause the automobile which came into collision with the plaintiff to be a trespasser on the highway and therefore a nuisance.’ Ervin L. Bumford testified that he did business under the trade name Middlesex Motor Company. The case will first be considered upon the assumption that the action was properly brought, or can now be maintained against him either in his own name or under the designation of the defendant in the writ.

As a dealer in automobiles under the name Middlesex Motor Company Bumford was the holder of number plates of a dealer. On November 13, 1926, he sold the automobile involved in the accident under an agreement of conditional sale to an employee, Francis P. Fee, the husband of Louise Fee. Title was not to pass until the automobile was paid for in full, and it had been paid for in part only at the time of the accident. After the sale the vendor permitted his number plates as dealer to remain on the automobile, and he testified that from the time of sale he never had it in his possession. His reason for allowing the plates to remain thereon was stated by him to be that the automobile was to be used in his business by Francis P. Fee. On the day of the accident Mrs. Fee was using the motor vehicle solely for her own purpose and her husband knew that she took it for that use. He testified that the number plates attached to it at that time belonged to Bumford and that the automobile was kept in Bumford's garage. James E. Fee, a brother of the purchaser, testified that the automobile was insured in his name, that he paid for the insuranceafter his brother lost his license, that a tax bill for it came to him as owner and that at times he kept it out of doors or in his own yard over night.

[3] By virtue of G. L. c. 90, § 5, as amended, the number plates of a dealer may be used on motor vehicles owned or controlled by him and when so used the vehicles are to be regarded as registered until sold or let for hire or loaned for a period of more than five successive days. De Simone v. Barr, 254 Mass. 79, 149 N. E. 624;Ducharme v. Coe Motors, Inc., (Mass.) 175 N. E. 168. Upon the testimony considered in its aspect most favorable to the plaintiff the jury could have found that the possession and entire control of the automobile passed to Francis P. Fee when it was sold to him. The buyer to whom possession and control of the vehicle have passed cannot legally operate the machine upon a public way if the only number plates upon it are those of the dealer from whom he bought it. McDonald v. Dundon, 242 Mass. 229, 136 N. E. 264, 26 A. L. R. 1243;Fulton v. Kaler (Mass.) 170 N. E. 818. See O'Halleron v. Miller (Mass.) 175 N. E. 94. A motor vehicle registered under G. L. c. 90, § 2, in the name of the owner, when sold on a contract of conditional sale may continue to be legally registered in the name of the conditional vendor even though the possession and control pass to the conditional vendee. See Temple v. Middlesex & Boston Street Railway Co., 241 Mass. 124, 134 N. E. 641;Murray v. Indursky, 266 Mass. 220, 223, 165 N. E. 91. In the case at bar the automobile was registered not under G. L. c. 90, § 2, but under G. L. c. 90, § 5 as amended, and by reason of the terms of the latter statute the dealer's registration did not protect the motor vehicle after the dealer had sold it and parted with possession and control. The word ‘sold’ as used in this section refers not only to absolute sales but to conditional sales. Chase v. New York Central & Hudson River Railroad Co., 208 Mass. 137, 156, 94 N. E. 377.

In Downey v. Bay State Street Railway, 225 Mass. 281, at page 284, 114 N. E. 207, 208, the court in referring to the statute states: ‘The provisions of St. 1909, c. 534, § 4, providing for a distinguishing number or mark to be furnished to manufacturers and dealers, instead of registering each vehicle owned or...