Malloy v. Newman
| Decision Date | 24 November 1941 |
| Citation | 310 Mass. 269,37 N.E.2d 1001 |
| Parties | CECILIA M. MALLOY, administratrix, v. SIMON NEWMAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
January 6, 1939.
Present: FIELD, C.
J., DONAHUE, QUA DOLAN, COX, & RONAN, JJ.
Proximate Cause. Motor Vehicle, Permitting to remain on highway, Registration. Negligence, Violation of law, Motor vehicle, Use of way. Way Public: trespass.
Negligent conduct of the owner of an unregistered automobile in permitting it in violation of G. L. (Ter. Ed.) c. 90, Section 9, to remain parked upon a public way, with its doors unlocked and the key in the ignition switch, although he knew that "there were many thefts of automobiles and that it was dangerous to leave an automobile unlocked and unguarded," might properly be found to have been the proximate cause of the death of a police officer who, several miles from the place of such parking, was run down by one who had stolen the automobile while so parked and, not in the course of escape or pursuit but nearly two hours after the theft, was driving down a hill on a city street at a reckless speed. QUA & COX,
JJ., dissenting.
TORT. Writ in the Municipal Court of the Brighton District of the City of Boston dated February 25, 1935.
On removal to the Superior Court, the case was tried before Walsh, J. The case was argued at the sitting of this court in January, 1939, before Field, C.J., Donahue, Qua, & Cox, JJ., and afterwards was submitted on briefs to all the Justices except Lummus, J.
J. E. Hannigan, (F.
G. Lichtenstein with him,) for the plaintiff.
C. C. Petersen, (John J.
Sullivan with him,) for the defendant.
The plaintiff's intestate, a police officer of the city of Boston, while acting in the course of his duty on a public highway on June 4, 1934, was struck and killed by an automobile owned by the defendant.
The case was tried before a jury in the Superior Court on a declaration containing six counts. At the close of the evidence introduced by the plaintiff the defendant rested. The judge in compliance with a motion filed by the defendant directed a verdict for him on each count. The judge reported his action for the determination of this court with a stipulation of the parties that, if there was no error in the direction of the verdicts for the defendant, the verdicts should stand, but that, if there was error in the direction of a verdict for the defendant on any count in the declaration, a new trial should be had on such count.
1. The plaintiff administratrix here seeks to recover damages for the death of her intestate under the section of the death statutes that provides that "a person who by his negligence or by his wilful, wanton or reckless act, or by the negligence or wilful, wanton or reckless act of his agents or servants while engaged in his business, causes the death of a person in the exercise of due care, who is not in his employment or service, shall be liable in damages . . . ." G. L. (Ter Ed.) c. 229, Section 5. The statute does not include liability for a death caused by a "nuisance." Liability is imposed only for "negligence" or for a "wilful, wanton or reckless act." The operator of the defendant's automobile at the time it caused the death of the plaintiff's intestate was not an agent or servant of the defendant. The evidence did not warrant a finding that the defendant committed a "wilful, wanton or reckless" act. The plaintiff can recover in this action only if a finding is warranted that negligence of the defendant contributed to cause the death of her intestate.
2. The jury was warranted in finding the following facts.
The defendant had lived in Rhode Island for over thirty years. He purchased the automobile in question in February,
1934, and registered it in Rhode Island. It was not registered in Massachusetts and no permit for its operation here was issued by the registrar of motor vehicles. (G. L. [Ter. Ed.] c. 90.) The defendant was unmarried and kept a room in Rhode Island which he occupied when in that State. Since 1930 he had owned seven apartment houses in the Allston district of the city of Boston, and since the spring of 1933 he had kept a room for his exclusive use in one of those buildings, which he occupied when he was in this Commonwealth. A large amount of repair work was done in his Allston apartment houses in April and May, 1934. During a period from the last of March to the end of May in 1934 the defendant came to Allston each week on Monday and stayed there until Saturday. During that period he operated his automobile on highways of this Commonwealth for a total of more than thirty days.
Though the registration of the defendant's automobile in Rhode Island gave his address as Woonsocket and he in fact resided in North Smithfield in that State, we assume for the purposes of this case that the registration was valid under the law of Rhode Island. (See Rhode Island P. L., 1929, c. 1433, Section 2; Ewell v. Cardinal, 53 R. I. 469, 471; Marquis v. Messier, 39 R. I. 563, 564, 565.) By reason of such registration, the defendant's automobile could lawfully be operated on Massachusetts highways within a period of thirty days, reckoned from the day when it first entered this Commonwealth in the year 1934, or from the day of his acquisition of a place of abode or business here, whichever day was the earlier. (G. L. [Ter. Ed.] c. 90. Section 3, St. 1933, c. 188. [See now, however, St. 1939, c. 325.] Van Dresser v. Firlings, 305 Mass. 51 , 55. There was evidence warranting a finding that the period during which the defendant's automobile could lawfully be operated on the ways of this Commonwealth -- solely by virtue of its Rhode Island registration -- had expired some time before the day when its operation caused the death of the plaintiff's intestate.
Although the defendant's automobile was registered in Rhode Island, it could not have been lawfully operated on the ways of this Commonwealth beyond the thirty-day period above mentioned without registration here unless, first, the defendant maintained in full force a policy of liability insurance providing indemnity against loss by reason of the liability to pay damages to others for bodily injury or death caused by the defendant's automobile, and, second, the defendant or the operator of the automobile, "while operating the same during such additional time, has on his person or in the vehicle in some easily accessible place a permit issued by the registrar which then authorizes the operation of such vehicle without registration under this chapter." G. L. (Ter. Ed.) c. 90, Section 3, as amended by St. 1933, c. 188. See Conningford v. Cote, 308 Mass. 472 , 474. The defendant admitted that no such permit had been issued by the registrar. It follows that the defendant's automobile could not lawfully be operated or permitted to remain upon a Massachusetts highway on the day when the plaintiff's intestate was killed. G. L. (Ter. Ed.) c. 90, Section 9.
3. There is nothing in the record to indicate that there was any negligent act done by the defendant after his automobile was stolen. We are here concerned with the conduct of the defendant on the evening of June 4, 1934, prior to the time of the theft. A question here to be determined is whether there was evidence to warrant a finding of negligence on the part of the defendant. In addition to the evidence earlier related there was evidence warranting the finding of the following facts. The defendant, at about eight o'clock in the evening of June 4, drove his automobile to one of his apartment houses in Allston and left it unattended on the public highway in front of the house. When he left it the doors of the automobile were not locked and the key, by means of which the engine could be started, was in the ignition switch. The defendant testified that he knew "there were many thefts of automobiles and that it was dangerous to leave an automobile unlocked and unguarded." Within one half to three quarters of an hour after the defendant left his automobile he returned to the place where he had left it. He found it was gone. It had been stolen. In less than two hours after the theft, [1] the automobile was being operated by Hart, the thief, at a rate of speed of over eighty miles an hour on a public highway in the Charlestown district of the city of Boston where it struck and killed the plaintiff's intestate, who, it could have been found, was in the exercise of due care. The automobile was equipped with means to prevent its being "set in motion by unauthorized persons . . . contrary to the will of the owner" as required by G. L. (Ter. Ed.) c. 90, Section 7. The defendant did not use those means when he left his automobile unattached on the highway.
Our registration statutes in force at the time of the death of the plaintiff's intestate contained prohibitions with respect to motor vehicles that are upon a public way without proper registration (or without a permit issued by the registrar of motor vehicles when such a permit is required by the statute). "No person shall operate . . ." such a vehicle upon a way -- and "the owner . . . of such a vehicle shall not permit" its operation there -- or "permit" it "to remain upon any way." G. L. (Ter. Ed.) c. 90, Section 9. On the night when the plaintiff's intestate was killed the defendant violated the first and third of these prohibitions. We are here chiefly concerned with his violation of the statute in permitting his motor vehicle to remain upon a public way.
The language of the registration statute has consistently been interpreted in our decisions as expressing a definite public policy of the Legislature with respect to motor vehicles, not legally registered, when upon a public way. Since this interpretation...
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