275 Mass. 346 | Mass. | 1931
This is an action of tort for personal injuries to the plaintiff, a boy five years of age, caused by an automobile driven by Louise Fee, on a public way in Cambridge on March 9, 1927. At the conclusion of the evidence counsel entered into a stipulation that the' judge would submit to the jury the issues of due care and damages, and if the jury found that the plaintiff was in the exercise of due care and assessed damages, the judge would direct a verdict for the plaintiff in the sum found by the jury and report the case to the Supreme Judicial Court upon the terms that if on the competent evidence the jury might properly have found for the plaintiff the verdict was to stand, otherwise judgment was to be entered for the defendant. The jury found that the plaintiff was in the exercise of due care and assessed damages in a stated sum. Thereupon a verdict was directed for the plaintiff in that sum and in accordance with the stipulation the case was reported to this court.
The defendants described in the writ are Middlesex Motor Co., “a corporation duly, established by law and having a usual place of business in Concord,” and Louise Fee. On August 6, 1928, before the case went to trial on the merits, judgment was entered in favor of Louise Fee following a nonsuit because of the failure of the plaintiff to answer interrogatories propounded to him by her. The substituted declaration filed in 1930 alleges that Louise Fee was operating the automobile negligently and was unlawfully upon the highway, the automobile not having been duly registered; “that the defendant his agents or servants, unlawfully and without right loaned to the said Fee or to some other person” certain registration plates issued to the defendant by the registrar of motor vehicles for the Commonwealth of Massachusetts; that these number plates were attached to the car driven by Fee in violation of the laws of the Commonwealth; and that the plaintiff was injured as a result of the defendant’s contribution to and creation of a nuisance. The answer purporting to be made by the defendant “Middlesex Motor Co.” is a
As a dealer in automobiles under the name Middlesex Motor Co., Bumford was the holder of number plates of a dealer. On November 13, 1926, he sold the automobile involved in the accident under an agreement of conditional sale to an employee, Francis P. Fee, the husband of Louise Fee. Title was not to pass until the automobile was paid for in full, and it had been paid for in part only at the time of the accident. After the sale the vendor permitted his number plates as dealer to remain on the automobile, and he testified that from the time of sale he never had it in his possession. His reason for allowing the plates to remain thereon was stated by him to be that the automobile was to be used in his business by Francis P. Fee. On the day of the accident Mrs. Fee was using the motor vehicle solely for her own purpose and her husband knew that she took it for that use. He testified that the number plates attached to. it at that time belonged to Bumford and that the automobile was kept in Bumford’s garage. James E. Fee, a brother of the purchaser, testified that the automobile was insured in his name, that he paid for the insur
By virtue of G. L. c. 90, § 5, as amended, the number plates of a dealer may be used on motor vehicles owned or controlled by him and when so used the vehicles are to be regarded as registered until sold or let for hire or loaned for a period of more than five successive days. De Simone v. Barr, 254 Mass. 79. Ducharme v. Coe Motors Inc., ante, 69, 72-73. Upon the testimony considered in its aspect most favorable to the plaintiff the jury could have found that the possession and entire control of the automobile passed to Francis P. Fee when it was sold to him. The buyer to whom possession and control of the vehicle have passed cannot legally operate the machine upon a public way if the only number plates upon it are those of the dealer from whom he bought it. McDonald v. Dundon, 242 Mass. 229. Fulton v. Kaler, 271 Mass. 23, 26. See O’Halleron v. Miller, 274 Mass. 508, 509-510. A motor vehicle registered under G. L. c. 90, § 2, in the name of the owner, when sold on a contract of conditional sale may continue to be legally registered in the name of the conditional vendor even though the possession and control pass to the conditional vendee. Murray v. Indursky, 266 Mass. 220, 223. See Temple v. Middlesex & Boston Street Railway, 241 Mass. 124. In the case at bar the automobile was registered not under G. L. c. 90, § 2, but under G. L. c. 90, § 5, and by reason of the terms of the latter statute the dealer’s registration did not protect the motor vehicle after the dealer had sold it and parted with possession and control. The word “sold” as used in this section refers not only to absolute sales, see Chase v. New York Central & Hudson River Railroad, 208 Mass. 137, 156, but to conditional sales.
In Downey v. Bay State Street Railway, 225 Mass. 281, the court in referring to the statute states at page 284: “The provisions of St. 1909, c. 534, § 4, providing for a distinguishing number or mark to be furnished to manufacturers and dealers, instead of registering each vehicle
In Temple v. Middlesex & Boston Street Railway, supra, the court assumed that the registration was that of an owner under G. L. c. 90, § 2, and undertook to decide only the effect of registration in the name of a conditional vendor as owner under that section of the statute. It follows that in the case at bar the automobile bearing the dealer’s number plates at the time of the accident could have been found to be illegally registered, and for that reason a trespasser upon the public way. See MacDonald v. Boston Elevated Railway, 262 Mass. 475, 476. If Bumford parted with all control of the automobile to the vendee and without right permitted him to use the number plates upon it, as the jury could have found he did, he cannot escape responsibility for assisting in creating a nuisance on the public way when Mrs. Fee was operating the automobile, even though there is no evidence to show that he consented to the use of it by her. See Gould v. Elder, 219 Mass. 396, 398. Francis P. Fee testified that his license to operate automobiles was revoked in December, 1926, and that his brother James operated the automobile for him until he received his license back and that his wife also drove it at times. James Fee testified that he had been driving the automobile for his brother about one year. Upon the testimony of Bum-ford he expected it to be used to promote his business, and he knew that his employee had lost his license to operate a motor vehicle at about the time it occurred. He would naturally expect someone else to run it at least while the disability of Francis P. Fee continued, and upon the facts disclosed by the evidence he might reasonably have anticipated that the purchaser of the automobile might at times permit his wife or someone else to operate it and in this way continue the nuisance which by the wrongful loan of his
The right of a person to adopt a name in which to transact business and to sue or be sued either in that name or in his own seems to be generally recognized. Crompton v. Williams, 216 Mass. 184, 186-187. Rand v. Farquhar, 226 Mass. 91, 97. Lewis v. Scoville, 94 Conn. 79, 85. G. L. c. 231, § 30, provides that an allegation in a civil action that a party is a corporation shall be taken as admitted unless a special demand for proof is filed. But Bumford in his testimony did not suggest that a corporation by that name existed or that any corporation was concerned with the issues in the case. Upon his own testimony Middlesex Motor Co. was the name he had chosen for the conduct of his business. He had sold the automobile and continued to hold title to it as conditional vendor. His act in permitting his own number plates as dealer to be used upon it was the basis for charging him with responsibility for the injury to the plaintiff. The return on the writ shows service on the defendant named therein by giving a copy of the writ and summons in hand to “E. L. Bumford its owner.” It is to be assumed on this record that counsel appearing in the case following that service would undertake to protect the rights of Bumford. It did not appear that any corporation had rights to be protected. The plaintiff sought to establish Bumford’s responsibility for the accident and the issues revolving about that question were fully tried. The stipulation filed in the case would seem to have been made in his behalf. Unless he is treated as a party a judgment in favor of the defendant for which the stipulation provides would be of no use to him if entered. No plea in abate
In accordance with the terms of the report judgment is to be entered for the plaintiff on the verdict.
So .ordered.