Bacon v. Boston Elevated Railway Co.
152 N.E. 35
Mass.
1926
Check Treatment
Crosby, J.

Thеse are two actions to recover for personal injuries, and for damage to an automobile which was in collisiоn with an electric car of the defendant on October 4, 1923. At the time of the collision the plaintiff in the first case was opеrating the automobile, and her husband (the plaintiff in the second case) was riding with her. There was evidence from which the jury might have found that the plaintiffs were in the exercise of due care and that the defendant’s motorman was negligent.

The automobile was owned by the plaintiff in the first case, and in 1923 was registered in the name of “Alice W. Willard” — her maiden name. She ‍‌‌‌​​‌‌‌​‌‌‌‌‌‌‌​‌‌‌‌​‌​​​​​‌‌​​​‌‌​‌‌​​‌​‌‌‌‌​​‍testified in substance that shе was married in 1921; that she was not engaged in business of any kind; that she was known to her friends and *32generally as Alice W. Bacon; that she aрplied for and received a license to operate the automobile in the name of Alice W. Bacon which shе knew to be her legal name; that whatever business she transacted after her marriage to Mr. Bacon to the time of the accident was in that name; that when she was asked her name she gave it as Alice W. Bacon; that when she applied for rеgistration of the automobile in 1923 she did so in a name that was not hers; that she paid an income tax in the name of Alice W. Baсon; and that she renewed her operator’s license in the same name.

As matter of law after her marriage in 1921 her legаl ‍‌‌‌​​‌‌‌​‌‌‌‌‌‌‌​‌‌‌‌​‌​​​​​‌‌​​​‌‌​‌‌​​‌​‌‌‌‌​​‍name was Alice W. Bacon. See G. L. c. 208, § 23. Chapman v. Phoenix National Bank of New York, 85 N. Y. 437, 449. The statute, G. L. c. 90, § 2, contemplates that a motor vehicle shall be registered in thе name of its owner. Fairbanks v. Kemp, 226 Mass. 75, 78. It is manifest from the uncontradicted evidence that at the time of the accident the automobile wаs ‍‌‌‌​​‌‌‌​‌‌‌‌‌‌‌​‌‌‌‌​‌​​​​​‌‌​​​‌‌​‌‌​​‌​‌‌‌‌​​‍not legally registered and was a nuisance upon the highway, which precludes recovery by the owner. Gould v. Elder, 219 Mass. 396. Pierce v. Hutchinson, 241 Mass. 557. McDonald v. Dundon, 242 Mass. 229. Nichols v. Holyoke Street Railway, 250 Mass. 88. It was held in Crompton v. Williams, 216 Mass. 184, that for the owner оf a motor truck to register it in a trade name, under which he had carried on business for many years and by which name he was well known in thе community, was a compliance with the statute in the absence of evidence that such name was adopted to conceal identity. That decision is not pertinent to the facts in the case at bar. The trial, judge rightly directed a verdict for thе defendant.

In the second case, it is the contention of the plaintiff that even if the automobile was not legally registerеd, he is entitled to recover. He relies on G. L. c. 90, § 9, which provides in part that “No person shall operate any motor vеhicle . . . unless such vehicle is registered ‍‌‌‌​​‌‌‌​‌‌‌‌‌‌‌​‌‌‌‌​‌​​​​​‌‌​​​‌‌​‌‌​​‌​‌‌‌‌​​‍in accordance with this chapter . . . but violation of this section shall not constitute а defence to actions of tort for injuries suffered by a person . . . unless it is shown that the person injured . . . knew or had'reasonable cause to know that this section *33was being violated.” The trial judge ruled as matter of law that upon all the evidence the рlaintiff at the time of. the accident knew or had “reasonable ground to believe or •know” that the automobile was registered in the name of Alice W. Willard.

The plaintiff testified that he had an operator’s license; that at various times he had driven the automobile in question, both with and without his wife’s presence in the automobile; that he went with it on short pleasure or business trips during the year 1923; that he never had occasion to see the registration but knew that it ought to be in the car or about his person; that his wife’s nephew attended to the registration; that he did not know whether it was registered in the name of Mrs. Bacon, although he had been driving the car; that during the year 1923, before the accident, no one asked for the certificate of registration; that he knеw the car was registered in 1923 only by knowing that Mrs. Bacon always attended to all those things in his absence; that he took it for granted thаt the certificate of registration was in the car; that the first time he knew it was registered in the name of Alice W. Willard was during the trial of this case. Upon ‍‌‌‌​​‌‌‌​‌‌‌‌‌‌‌​‌‌‌‌​‌​​​​​‌‌​​​‌‌​‌‌​​‌​‌‌‌‌​​‍the question whether he had knowledge that the car was registered, he testified that he knew it was registered, and also that he did not know it was registered. He further testified that he notified the highway commission of the accident, stating in his report that the automobile was “owned and operated by my wife, Mrs. A. W. Willard-Bacon”; that on the front of the report to the commission, mаde in his handwriting and received by the commission, the registration number appeared and might have been taken off the certifiсate of registration; that he did not know where he got the number; that in July, 1923, an inspector of the highway commission made a complaint to him when he was in the car about the bumper covering one of the rear lights; that later he was notified of the comрlaint by a letter addressed to “Mrs. Willard,” but that he did not notice to whom it was addressed; that his wife showed him the letter but he did not “pay any аttention to it.”

*34Ordinarily when in a jury trial an issue of fact is to be proved and the evidence respecting it is contradictory, it cannot be ruled as matter of law that the fact has or has not been proved, but such decision must be left to the jury. In the case at bar the question whether the plaintiff knew or had reasonable cause to know that the automobile was illegally registerеd depends entirely upon his own testimony and the reasonable inferences to be drawn therefrom; and while he testified that he did and also that he did not know it was registered, and did not know that it was registered in the name of Alice W. Willard, it plainly appears frоm his admissions that, if he did not know of such illegal registration, he had reasonable cause to know that fact. His testimony that he saw thе letter written before the accident by the highway commission, directed to “Mrs. Willard” and complaining that the rear lights on the cаr were obstructed, alone was notice to him that the car was not legally registered, notwithstanding his testimony that he did not “pay аny attention to it.” The letter conveyed to him such information of the fact that the registration was illegal as he was bound to observe, and is to be considered notice of it. George v. Kent, 7 Allen, 16, 18. Walkden’s Case, 237 Mass. 115, 117. Rolli v. Converse, 227 Mass. 162, is clearly distinguishable from the present case. The judge rightly ruled that the plaintiff knew or had reasonable cause to know that the automobile was registered in the name of Alice W. Willard.

In accordance with the terms of the report, the entry in each case must be

Judgment on the verdict.