Pierce v. Hutchinson

• Decision Date: 19 June 1922
• Citation: 136 N.E. 261,241 Mass. 557
• Parties: PIERCE v. HUTCHINSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 557

136 N.E. 261

PIERCE

v.HUTCHINSON.

Supreme Judicial Court of Massachusetts, Middlesex.

June 19, 1922.

Exceptions from Superior Court, Middlesex County; James H. Sisk, Judge.

Action by Edward S. Pierce against Walter K. Hutchinson, for personal injuries sustained from being run into by an automobile hired from defendant by the driver's employer, verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

The court submitted three questions to the jury, in response to which the jury found that defendant was not a person engaged principally in the business of buying, selling, or exchanging motor vehicles, or whose principal business was the renting of motor vehicles; that the car that hit plaintiff was operated on the public streets or highways having upon it as its only number plates the plates formerly issued to Rogers, its former deceased owner; and that no want of due are on plaintiff's part directly contributed to the accident. Plaintiff's eighth request was for an instruction that, if the car was not registered, or, if registered, did not bear number plates showing its true registration number, then it had no right to be on any public street, and, if defendant had control of the car, and expressly or impliedly permitted it to be operated on the public streets or highways, he was liable regardless of whether the negligence of the person driving the car, or even the negligence of plaintiff himself, contributed to the accident. Defendant's nineteenth request was for an instruction that, if plaintiff's want of due care contributed to the accident, he could not recover. On the question of emergency the court withdrew an instruction previously given, and charged that, if plaintiff ‘was confronted with a sudden emergency, and he did what you found that he did, the standard of his care is what reasonably careful men do when confronted with a like emergency; in other words, What would a reasonably careful man do under the circumstances which this plaintiff found himself in?’Wm. G. Thompson, George E. Mears, and T. F. McAnarney, all of Boston, for plaintiff.

Sawyer, Hardy, Stone & Morrison and W. D. Gray, all of Boston, for defendant.

CROSBY, J.

This is an action to recover for personal injuries received by the plaintiff when he was run into by a Ford runabout on August 16, 1916. The plaintiff, who had been a passenger on an electric car just before the accident, alighted from the car at a regular stopping place, and while proceeding toward the sidewalk was struck and knocked down by the runabout driven by one Keegan who was then acting as chauffeur for Edward Gruber, who sat beside him. Keegan was not in the defendant's employ.

In the spring of 1916 the machine in question was owned by Charles P. Rogers and duly registered in his name under No. 52108; he died some time before June of that year. ‘There was no administration of his estate’ but his widow undertook to sell the runabout in June, 1916, to the defendant, through his agent, who paid $310 for it; the defendant then took and thereafter retained possession of it in his garage. At that time the number plates bearing Rogers' number were attached to it and were not afterwards removed nor were any other number plates placed on it before the time of the accident.

The defendant obtained from the Massachusetts Highway Commission for the year 1916 an automobile dealer's license No. 0866, and had in his garage half a dozen number plates bearing that number. He never gave any instructions to have any of these plates attached to the runabout although he knew it was in his garage. He intrusted the running of the garage to one Stearns as manager. The largest part of the business there conducted was the selling of cars; and a Ford agency and service station were maintained there for the sale, storage, renting and repairing of Ford cars. The defendant testified that he did not spend much of his time at the garage, that he operated three grocery and provision stores and also carried on a farm.

The record recites that on the afternoon of August 25, 1916, Stearns, ‘acting within the scope of his authority, made an oral agreement with said Gruber for the letting of said runabout to said Gruber for three days to take a trip. Under the agreement Gruber was to supply his own chauffeur, pay his own gasoline, and return the car in as good condition as it was when he took it, outside of wear and tear, and pay the defendant a certain sum per day for the use of the car. The accident happened while the car was being used by Gruber and driven by Keegan under this arrangement.’ When the car was taken from the garage by Keegan, the defendant was not present; later in the day Keegan and Gruber returned in the car and complained about its condition, and the defendant got into it with Keegan, drove a short distance, returned to the garage and again delivered it to Keegan, stating to them that ‘it was all right.’ The car was not again in the garage until after the accident.

The declaration contains five counts. The presiding judge directed a verdict for the defendant on the first and second, and, subject to the defendant's exception, submitted the third, fourth and fifth to the jury, instructing them, however, that the evidence did not warrant a verdict for the plaintiff on any of these counts charging the defendant with liability by reason of permitting an automobile in a dangerous and defective condition to be upon the highways.

[1] The statute requires that the person in whose name an automobile is registered shall be the owner thereof. St. 1909, c. 534, § 2, as amended by St. 1912, c. 400, § 1. It is also provided by St. 1909, c. 534, § 4, that--

‘Every manufacturer of or dealer in motor vehicles may make application, by mail or otherwise * * * for a general distinguishing number or mark, instead of registering each motor vehicle owned or controlled by him * * * and the commission may grant the application * * * and issue to the applicant a certificate of registration. * * *’

These statutes make it plain that only the owner, or, if a dealer or manufacturer, the person either owning or in control of a motor vehicle is entitled to registration. Gould v. Elder, 219 Mass. 396, 107 N. E. 59;Downey v. Bay State Railway, 225 Mass. 281, 114 N. E. 207;Shufelt v. McCartin, 235 Mass. 122, 126 N. E. 362;Harlow v. Sinman, 135 N. E. 553. We need not determine whether the defendant was the owner of the runabout, as there was ample evidence to warrant a finding that it was controlled by him within the meaning of ...