Downey v. Bay State Street Railway , 225 Mass. 281 ( 1916 )

Braley, J.

It is settled that, even if the accident could be found to have been caused solely by the defendant’s negligence, the plaintiff cannot recover unless her motor- truck which came into collision with the defendant’s car had been registered. St. 1909, c. 534, § 10. Dudley v. Northampton Street Railway, 202 Mass. 443. The St. of 1909, c. 534, § 2, as amended by St. 1912, c. 400, § 1, provides that application for the registration of motor vehicles may be made by “the owner thereof” in the manner there prescribed, and the report under which the case is before us states that a certificate of registration had been issued to the plaintiff “as owner.” But, if the presumption of compliance with the statutory requirements was sufficient until rebutted, the defendant contends that the plaintiff’s evidence of title is insufficient to bring her within the provisions of the statute. Trombley v. Stevens-Duryea Co. 206 Mass. 516, 518. The Sts. of 1903, c. 473, § 1, 1905, c. 311, § 2, 1906, c. 412, § 8, 1907, c. 580, § 1, and 1908, c. 648, § 3, having uniformly provided that registration should be effected by the owner or “person in control thereof,” and the St. of 1909, c. 534, § 2, as amended by St. 1912, c. 400, § 1, having omitted the words "person in control thereof,” the defendant contends that the plaintiff is barred from recovery unless she held the absolute title. The plaintiff bought and operated the truck under a conditional contract of sale by the terms of which a bill of sale was to be given when the purchase price had been fully paid. Smith v. Aldrich, 180 Mass. 367. And, until default in payment of the promissory notes given as collateral security for the performance of the contract, she was given the unqualified right of possession, of use and of management, as if the truck were her own. If strangers, or even the vendor before condition broken, unlawfully interfered with her possession and use of the truck she could have maintained an appropriate action to redress the wrong. Shaw v. Kaler, 106 Mass. 448. Brewster v. Warner, 136 Mass. 57. Field v. Early, 167 Mass. 449. Field v. Fletcher, 191 Mass. 494, 496. Gamson v. Pritchard, 210 Mass. 296. Williston on Sales, § 330, and cases cited in notes. The words “person in control thereof” found in the earlier enactments obviously embrace a class of persons who may have no general or special property in the motor vehicle they are operating, while the word “owner” includes, not only persons in whom the legal title isr vested, but bailees, mortgagees in possession and vendees under conditional contracts of sale who have acquired a special property which confers ownership as between them and the general public for the purposes of registration. Commonwealth v. Sherman, 191 Mass. 439, 440.

The Legislature moreover could not have intended that, where a purchaser buys a car the purchase price for which is payable by instalments, he cannot use it upon the public ways until payment of the last instalment, for until then the legal title remains in the vendor, as the owner, who, being under no obligation to do so, may refuse to permit registration in his name. But this result must follow if the construction contended for is correct.

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 owned or controlled by them, refers to vehicles which remain in their possession and control as manufacturers or dealers, and not to vehicles which have been sold either conditionally or unconditionally, followed by delivery of possession and unrestricted powers of control.

The motor truck having been properly registered, the validity of the vote of the commission relating to the issuance of registration certificates to lessees-where the name of the person or company actually owning the car is to be stated, need not be determined.

It follows that the entry should be, judgment for the plaintiff on the verdict.

So ordered.