McDonald v. Dundon

• Decision Date: 30 June 1922
• Citation: 136 N.E. 264,242 Mass. 229
• Parties: McDONALD v. DUNDON. SAME v. RAWSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 229

136 N.E. 264

McDONALD

v.DUNDON.

SAME

v.RAWSON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1922.

Exceptions from Superior Court, Suffolk County; G. A. Sanderson, Judge.

Two actions by John McDonald against Walter J. Dundon and Thomas R. Rawson for personal injuries sustained in a collision with an automobile owned and driven by the defendant Dundon, and bearing number plates issued to the defendant Rawson as a dealer. Directed verdict for the defendant Rawson, and plaintiff brings exceptions. Verdict against the defendant Dundon, and he brings exceptions. Defendant Dundon's exceptions overruled, plaintiff's exceptions sustained, and judgment rendered for plaintiff.

The court charged as matter of law that the automobile was not legally registered, and the defendant Dundon excepted. The court also ruled that the fact that Rawson permitted the use of his number plates on Dundon's automobile did not make him liable for an accident caused by the automobile, and accordingly directed a verdict for Rawson.

Fred L. Norton, of Boston, for plaintiff.

J. F., J. E. & D. T. O'Connell and E. B. Rowe, all of Boston, for defendants.

CROSBY, J.

These are two actions of tort brought by the same plaintiff, to recover for personal injuries received by him by reason of a collision between a team which he was driving and an automobile owned and operated by the defendant Dundon. The cases werr tried together; in the first, the jury found for the plaintiff; in the second a verdict was directed in favor of the defendant. It was agreed that if a verdict was erroneously ordered for the defendant Rawson, judgment should be entered for the plaintiff for such amount, if any, as the jury should find in the case against Dundon.

It is not contended that Rawson was not a duly licensed dealer under St. 1909, c. 534, § 4, as amended by General Acts 1915, c. 16, § 2. See St. 1920, c. 262, § 1. Five number plates were issued to him each bearing the number 01076 and in addition one of the letters A, B, C, D, or E.

The accident occurred near the intersection of Glendon and Condor streets in East Boston. The evidence shows that Dundon bought the automobile about four months before the accident; it was a second-hand machine; he put it in Rawson's garage where the latter and his employees and Dundon worked on it in the endeavor to put it in good running order, and at times, when testing it, with Rawson's consent would attach to it number plates issued to Rawson as a dealer. It never was registered in the name of Dundon. After the work above referred to was completed, ‘engine trouble’ required taking the car to Cambridge for further repairs; before starting Dundon was permitted by Rawson to attach the latter's number plates to the car, and on arriving in Cambridge he removed them and latter returned them to Rawson. When the repairs had been completed Dundon requested the use of the number plates to bring the car back to the garage, and Rawson for that purpose gave him one of the five sets numbered 01076-C. Dundon put the plates on his car and at the time of the accident was driving it from Cambridge to Rawson's garage.

[1][2] In the case against Dudon there was evidence that at the time of the accident the plaintiff was in the exercise of due care and that the defendant was negligent. The only exception is to that portion of the charge of the presiding judge in which he ruled that as matter of law the automobile was not legally registered. We are of opinion that the ruling was correct. The machine was neither owned nor controlled by Rawson at the time of the accident; it was in the possession and the control of Dundon as owner, but it was not registered in his name. The license issued to Rawson and the number plates loaned by him and attached to the car offered no protection to Dundon; the plates could not lawfully be loaned; the only use which Rawson as a dealer was permitted to make of them was to attach them to cars which he owned or controlled. It is obvious that at the time of the accident the car was not only owned and operated by Dundon but was under his sole and exclusive control. It follows that it was not legally registered and was a nuisance upon the highway and Dundon in operating it was a trespasser. Dudley v. Northampton Street Railway, 202 Mass. 443, 89 N. E. 25,23 L. R. A. (N. S.) 561;Gould v. Elder, 219 Mass. 396, 107 N. E. 59;Fairbanks v. Kemp, 226 Mass. 75, 115 N. E. 240;Koonovsky v. Quellette, 226 Mass. 474, 116 N. E. 243, Ann. Cas. 1918B, 1146;Evans v. Rice, 238 Mass. 318, 130 N. E. 672;Pierce v. Hutchinson, 136 N. E. 261.

If it be assumed there was evidence that before the trip to Cambridge the automobile was under the control of Rawson for the purpose of repair and sale, there was no evidence which would have warranted a finding that such control existed at the time of the accident. It follows that the exceptions of the defendant Dundon must be overruled.

The question...