Potter v. Gilmore

• Decision Date: 16 February 1933
• Citation: 184 N.E. 373,282 Mass. 49
• Parties: POTTER v. GILMORE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 49

184 N.E. 373

POTTER

v.GILMORE.

Supreme Judicial Court of Massachusetts, Bristol.

Feb. 16, 1933.

Exceptions from Superior Court, Bristol County; Joseph Walsh, Judge.

Action by Lloyd S. Potter against George W. Gilmore. Verdict in favor of plaintiff, and defendant brings exceptions.

Exceptions overruled.

H. F. Hathaway, of Taunton, for plaintiff.

E. Martin and O. E. Hayes, both of Boston, for defendant.

FIELD, Justice.

This is an action of tort to recover compensation for personal injuries sustained by the plaintiff as the result of a collision between a motorcycle which he was operating on the highway and an automobile operated by the defendant. The declaration is in three counts. The first is for negligent operation of the defendant's automobile, the second for grossly negligent operation, and the third for wilful, wanton and reckless conduct in such operation. Verdicts for the defendant were directed on the first and second counts, but there was a verdict for the plaintiff on the third count. The case is here on the defendant's exceptions to the denial of his motion for a directed verdict on the third count, to the refusal of rulings and to a portion of the charge.

It is undisputed that there was a collision on the highway between the motorcycle operated by the plaintiff and the automobile operated by the defendant, that injury to the plaintiff resulted, that his motorcycle was unregistered, and that there was evidence warranting a finding of wilful, wanton or reckless conduct on the part of the defendant.

1. The question for determination in connection with the motion for a directed verdict is whether the fact that the motorcycle operated by the plaintiff was unregistered as matter of law bars recovery by the plaintiff. We think that it does not and that the motion was denied rightly.

The statutes of the commonwealth provide for the registration of motor vehicles and prohibit the operation of an unregistered motor vehicle upon the highway. G. L. (Ter. Ed.) c. 90, §§ 2, 9. These statutes do not in terms create a civil liability for such operation or deprive the operator of his ordinary remedies. It is settled, however, by our decisions that by reason of these statutes an unregistered motor vehicle operated on the highway is a nuisance, persons participating in such operation are not travellers on the highway but are trespassers against persons using the highway lawfully and such operation is, at least, evidence of negligence, if not negligence per se. Furthermore it is settled that the illegality of the operation of an unregistered motor vehicle on the highway permeates the act of operating it and such operation is a cause and not merely a condition of an injury to the operator to which the negligence of another contributes, although the unlawful element considered by itself had no tendency to produce such injury, that is, it is not essential to show a causal relation between the unlawful element in the operation and the injury. Dudley v. Northampton Street Railway Co., 202 Mass. 443, 89 N. E. 25,23 L. R. A. (N. S.) 561; Chase v. New York Central & Hudson River Railroad Co., 208 Mass. 137, 158, 94 N. E. 377;Bourne v. Whitman, 209 Mass. 155, 168, 169, 171, 172, 95 N. E. 404,35 L. R. A. (N. S.) 701;Balian v. Ogassian, 277 Mass. 525, 530, 179 N. E. 232, 78 A. L. R. 1021, and cases cited. (The effect of these decisions has been limited in some respects by statutes, but none of them benefits the plaintiff in the present case.) Moreover an unregistered motor vehicle operated upon the highway, as well as the operator of such a motor vehicle, has been described as an ‘outlaw.’ See, for example, Jenkins v. North Shore Dye House, Inc., 277 Mass. 440, 445, 178 N. E. 644;Avila v. Du Pont, 278 Mass. 83, 88, 180 N. E. 124. This characterization is derived from the leading case of Dudley v. Northampton Street Railway Co., 202 Mass. 443, 447, 89 N. E. 25, 27,23 L. R. A. (N. S.) 561, where it was said that ‘the Legislature * * * intended to outlaw unregistered machines,’ and the plaintiff operating such a motor vehicle was denied recovery because a trespasser on the highway. Obviously the word ‘outlaw’ is used not with a technical meaning, but rather as a forceful statement of the illegal position of the unregistered motor vehicle and the consequent liabilities and absence of rights. In each of the cases where either the motor vehicle or its operator was characterized as an ‘outlaw’ the decision rested upon principles of nuisance, trespass or negligence or, perhaps, as stated in another connection in Newcomb v. Boston Protective Department, 146 Mass. 596, 602, 16 N. E. 555, 558,4 Am. St. Rep. 354, the plaintiff was ‘precluded from recovering, on the ground that the court will not lend its aid to one whose violation of law is the foundation of his claim.’ The principles governing the present case are to be found within those categories. No other principleis implied in the use of the word ‘outlaw.’ It could not have been ruled as matter of law that the plaintiff's operation of an unregistered motor vehicle was wilful, wanton or reckless conduct. See Commonwealth v. Arone, 265 Mass. 128, 131, 163 N. E. 758;Issaacson v. Boston, Worcester & New York Street Railway Co., 278 Mass. 378, 390, 180 N. E. 118.

Statements of the relative rights and liabilities of persons operating unregistered motor vehicles and of persons guilty of wilful, wanton or reckless conduct are frequent in the opinions of this court. In Dudley v. Northampton Street Railway Co., 202 Mass. 443, 447-449, 89 N. E. 25, 27,23 L. R. A. (N. S.) 561, the court said that the Legislature intended to give to unregistered motor vehicles ‘as to persons lawfully using the highways, no other right than that of being exempt from reckless, wanton or wilful injury,’ that it ‘follows that the defendant, which was lawfully using the highway with its cars, owed to the plaintiff [who was operating an unregistered motor vehicle] no other or further duty than that which it would owe to any trespasser upon its property, that is, not the duty of ordinary care, as those words are commonly used, but merely the duty to abstain from injuring him by wantonness or recklessness,’ and that ‘of course the defendant would have had no right to run its car into the plaintiff's machine wantonly or recklessly; and that is the point of such cases as Welch v. Wesson, 6 Gray, 505, and McKeon v. New York, New Haven & Hartford Railroad, 183 Mass. 271, 67 N. E. 329,97 Am. St. Rep. 437.’ See, also, Chase v. New York Central & Hudson River Railroad, 208 Mass. 137, 156, 94 N. E. 377. In Holland v. Boston, 213 Mass. 560, 562, 100 N. E. 1009, it was said that the plaintiff operator of an unregistered motor vehicle could have against any one ‘no other right than to be exempt from reckless, wanton or willful injury.’ Dean v. Boston Elevated Railway Co., 217 Mass. 495, 105 N. E. 616, involved a collision between a motor vehicle and a street car. The court said at page 498 of 217 Mass.,105 N. E. 616, 617: ‘The automobile in which all the plaintiffs were riding having been unregistered, all its occupants were trespassers upon the highway and had no rights against other travelers except to be protected from reckless or wanton injury,’ and at page 499 of 217 Mass.,105 N. E. 616, 618: ‘The failure of the motorman to see the automobile before he did in such situation as it was, and to bring his car to a stop quicker, while evidence of negligence, fails to reach to the kind of conduct required as a basis for recovery by the plaintiffs.’ In Farr v. Whitney, 260 Mass. 193, 195, 156 N. to make prima facie case, where defendant motor vehicle ‘is an outlaw, with no other protection than exemption from willful or wanton injury.’ In Fine v. Kahn, 270 Mass. 557, 558, 170 N. E. 462, occurs this language: ‘Since the judge further found that the injuries alleged to have been sustained by the plaintiff were not recklessly or wantonly inflicted by the defendant, he correctly ruled that the plaintiff's motor vehicle was not registered according to law and was a trespasser upon the highway, and that the plaintiff had no rights against other travelers except to be protected from reckless or wanton injury.’ Similar expressions are to be found in Love v. Worcester Consolidated Street Railway Co., 213 Mass. 137, 138, 99 N. E. 960;Holden v. McGillicuddy, 215 Mass. 563, 565, 102 N. E. 923;Rolli v. Converse, 227 Mass. 162, 164, 116 N. E. 507;Norcross v. B. L. Roberts Co., 239 Mass. 596, 597, 132 N. E. 399; and Cook v. Crowell, 273 Mass. 356, 358, 173 N. E. 587. In Dudley v. Northampton Street Railway Co., 202 Mass. 443, 89 N. E. 25,23 L. R. A. (N. S.) 561,Holden v. McGillicuddy, 215 Mass. 563, 102 N. E. 923,Wentzell v. Boston Elevated Street Railway Co., 230 Mass. 275, 119 N. E. 652,Washburn v. Union Freight Railroad Co., 247 Mass. 414, 142 N. E. 79, and Fine v. Kahn, 270 Mass. 557, 170 N. E. 462, where unregistered motor vehicles operated or occupied by plaintiffs were involved, directed verdicts for defendants were sustained on the ground that the evidence did not warrant findings of wanton or reckless conduct on the part of the defendants. See, also, Leonard v. Conquest, 274 Mass. 347, 174 N. E. 677;Sullivan v. Napolitano, 277 Mass. 341, 178 N. E. 654. In Kilduff v. Boston Elevated Railway Co., 247 Mass. 453, 456, 142 N. E. 98, 99, it was said that it was not necessary to consider whether ‘the defendant might be held liable for reckless, wanton or willful conduct’ because it was not pleaded, though it was also pointed out that the evidence did not warrant a finding of such conduct. No one of these cases, unless it be the last cited, suggests any doubt of the proposition that the operator of an unregistered motor vehicle can recover compensation for injury resulting from the wilful, wanton or reckless conduct of the defendant.

Doubtless a strict analysis of the cases cited would show that decision of the...