Bohmann v. Perrett , 97 Conn. 571 ( 1922 )

The defendants assign error in the charge of the court, and in its refusal to charge as requested by them. They claim that the effect of the charge as given involved holding, as matter of law, either that the plaintiff was not the owner of the motorcycle, or that, if he was the owner, the vehicle was properly registered, even though in fact the plaintiff had not at the time of the accident actually procured registration in his own name, nor procured and affixed number-plates.

The defendants claim that the agreement, Exhibit C, in form a lease with privilege of purchase, is in fact, as between the parties, a conditional sale of the vehicle. We deem this claim well founded. That the instrument was not acknowledged or recorded, only affected its validity as against a third party, who might treat it as an absolute sale; as between the parties thereto it was valid for its expressed purpose. General Statutes, § 4746. We held in the case of Lambert HoistingEngine Co. v. Carmody, 79 Conn. 419, 65 A. 141, that a provision inserted in a lease giving an option to purchase at an agreed price and apply rental payments thereto, did not, as matter of law, necessarily make the contract one of conditional sale, but the construction of the instrument depended upon the real intent and purpose of the contract, to be gathered from circumstances surrounding the transaction. In the instant case we find the instrument, Exhibit C, strikingly similar in form to those in common use in effecting conditional sales of chattels. Its wording bears a marked resemblance to that passed upon inJester v. Naples, 94 Conn. 567, 109 A. 894, and treated as a conditional bill of sale. This appears from the instrument as printed in the full record of the case cited. Looking at the circumstances surrounding the transaction in the present case as disclosed by the admitted facts of record, we find that on the day of sale the plaintiff took full possession and control of the vehicle, paid a deposit of $11 upon the total purchase price of $55, and on the following day purchased accessories of the value of $25, which were placed upon the motorcycle. In connection with these facts, it is also to be considered that the vendors, as dealers, were by law prohibited from renting a motor-vehicle for hire (Public Acts of 1919, Chap. 233, § 11b), of which fact they were doubtless aware. A contract of lease, pure and simple, would be obnoxious to the provision of law just referred to, while a contract of conditional sale would not be. From the admitted facts as disclosed by the record, our conclusion must be that the plaintiff was a conditional vendee of the motorcycle, in full possession, and entitled to register the same in his own name. Stroud v. Water Commissioners,90 Conn. 412, 97 A. 336.

It would seem, in view of the general purpose of the motor-vehicle law as regards identification of vehicles in connection with their ownership, that registration by a conditional vendee in possession would more fully serve the design of the statute than registration continued in the name of the vendors. If, after such a contract as was made in this case, the vendors had, under the law, a right to retain registration of this vehicle under their general registration as dealers and by virtue of such interest or ownership as they retained, as to which we do not deem it necessary now to decide, then the contention of plaintiff that he was a licensed driver of a registered vehicle would be beyond cavil, for the disability to recover established by Chapter 233, § 44, of the Public Acts of 1919, applies only to an owner, and a person not an owner, if he is a licensed driver, can under such circumstances recover.

But we do not think that this question is fairly raised in the case, as a proper construction of the charge of the trial judge seems to rest the plaintiff's right to recover upon a registration made by the vendors which, at the time of the injury, still enured to the benefit of the plaintiff, and took the place for five days of actual registration in the latter's name; and this is the controlling point in the case which we have now to consider. It appears from the record that the vendors were duly-registered dealers in motor-vehicles, and as such, therefore, they were not obliged to register each vehicle acquired by them, but could hold the same in possession by virtue of the provision of § 11(a) of Chapter 233 of the Public Acts of 1919 by a sort of blanket or general registration. The Act further provides that each vehicle so registered shall be regarded as registered under the distinguishing number or mark until sold; also (§ 11(c)) that the dealer may loan to a purchaser his number-plates for a period not exceeding five days. Had the dealers, or any one of them, or one in their employ, driven the motorcycle for such purposes as the law allows, and been negligently injured by the act of any person, the fact that the number-plate had not been changed from that of a former owner to that of the dealers, would not have precluded a recovery. Not to carry proper markers while operating a car is a violation of § 13 of Chapter 233 of the Public Acts of 1919, and a penalty is provided for such violation; but § 44 of this last-cited Act does not prohibit a recovery for a violation of § 13; such a disability only arises from a violation of §§ 8, 9, 10, 11 and 12 of the Act. There is nothing in the five sections last referred to which requires the carrying of number-plates; that requirement is made by § 13.

The plaintiff claims that a dealer's registration protects a purchaser for a period of five days from the date of purchase, although the purchaser has not in fact completed the registration of the vehicle purchased, and that by virtue of such protection the latter may operate the vehicle for such period as fully and freely as the dealer might have done and with the same rights and immunities; in short, that the dealer's registration still covers the vehicle. On the other hand, the defendants contend that the provision of the statute of 1919, § 11(c), permitting the dealer to loan his markers for five days to a purchaser, is only in aid of the latter when he has registered his motor-vehicle but has not yet received his number-plates, and that the dealer's plates may be then temporarily placed upon the vehicle, and when so placed the latter may be legally operated for a period of five days. In Kiely v. Ragali,93 Conn. 454, 106 A. 502, while the point is not specifically treated in the opinion, its doctrine necessarily involves the conclusion that the purchaser of a dealer's car, who is protected by the dealer's registration for a period of not more than five days after the purchase, is relieved from the obligation of carrying a certificate of registration. Any other construction of the statute as to the meaning of the five-day period than that claimed by the plaintiff, would seem to negative any real benefit to a purchaser from this provision. Its manifest intent is to give him some use of the motor-vehicle pending the receipt of his certificate of registration and of the number-plates assigned to him. As construed by the defendants, the privilege would appear to be a very barren one in most cases. It would probably afford him the comfort of having his vehicle delivered to his own garage with the dealer's number-plates attached, there to remain for three or four of the days out of the five following his purchase. It will be noted that by statute the period of such use is limited to five successive days from the date of purchase.

Passing to the final contention of the defendants, we find them claiming that even if the law permits a purchaser to operate a motor-vehicle for five days by virtue of the registration of his vendor, the privilege of so doing is only available when the purchaser carries the number-plates of the vendor, that is, that the placing of the markers upon the vehicle is a condition precedent to the exercise of the right of operation. Reading the Automobile Act as a whole and correlating its various provisions, we cannot regard this contention as valid. It seems clear that the right to operate, enuring to a vendee of a motor-vehicle upon the registration of his vendor, is a right to exercise for five days the same privileges which enured to the vendor under the law. If the latter operates a vehicle with improper number-plates affixed thereto, he is not an outlaw on the highway, and without redress for injury received from the negligent act of another. He is merely subject to the penalties provided in § 13 of the Act of 1919. Putting the matter in another way, we may take the case of a purchaser of a motor-vehicle who has in fact procured his certificate of registration, but who inadvertently displays number-plates not assigned to him upon the vehicle while operating the same. Clearly he is not debarred a recovery from one who injures him. We therefore conclude that the registration of the vendors was, in effect, for the period of five days from the purchase of the motorcycle by the plaintiff, the equivalent of a certificate of registration granted to him individually, and that he had a right of recovery in his action, and that there was nothing erroneous in the charge of the trial judge.

There is no error.

In this opinion the other judges concurred.