cases, we think, clearly shows that, when the statute provides for the registration of automobiles and fixes a penalty for their operation upon the highways and streets of the state, unless registered, their operation upon the highways and streets, while unlawful, does not of itself bar the owner from recovering damages for injuries sustained by reason of defective highways, because the violation of law does not contribute to the injury; but if, in addition to the penalty provided by law, the statute prohibits the use upon the highway of an unregistered auto, the operation of the auto upon the prohibited streets and highways is such an unlawful act that, by reason of the prohibition, its operation is a trespass, and cities or towns are not obliged to keep their ways safe for trespassers to travel upon in violation of law. The language of section 11 of the act of 1911 clearly and plainly prohibits their use upon the highways of the state unless registered, as required by the act, and unless so construed the purpose of the Legislature to protect persons lawfully using the highway will fail; and the plain and unambiguous language of section 11 would be disregarded, which is a violation of all rules of law for the construction of statutes."

The Maine statute mentioned in this case provides as follows: "No motor vehicle of whatsoever kind shall be operated by a resident of this state of Maine, upon any highway, tramway, public street, avenue, driveway, park or parkway, unless registered as heretofore provided." 31

In the notes will be found the provisions of the statutes of a number of states prohibiting the operation of unregistered automobiles on the public highways, in all of which states a view contrary to that of Maine and Massachusetts has been adopted.32

31 Laws Me. 1911, c. 162, § 11. 32 Alabama: "It shall be unlawful for any person to run, operate, or drive any automobile, locomobile, or other motor vehicle of like kind on the public roads and highways of this state without first registering same." Code 1907, c. 168, § 6322.

California: In the case of Shimoda v. Bundy, 24 Cal. App. 675, 142 Pac. 109 (1914), it appeared that the plaintiff was injured by the negligence of the defendant while he (plaintiff) was riding a motorcycle which was not registered as required by an ordinance, which provided that it shall be unlawful for any person to use or operate any motorcycle upon or in any public street or thoroughfare, unless owner thereof shall have complied in all respects with this ordinance." For violation of the ordinance offender was made subject to punishment by fine or imprisonment, or both. The failure of the plaintiff to have his motorcycle registered was held not to affect his right to recover.

the

re

Florida: The Florida statute quired the registration of automobiles, and made a failure to do so a misdemeanor. Acts 1905, c. 5437, §§ 1-5.

Indiana: This statute merely required the registration of automobiles, and subjected to a fine any owner neglecting or refusing to do so. Burns' Ann. St. 1908, c. 130, §§ 10469-10476. Minnesota: "No person shall operate or drive a motor vehicle on the public highways of this state unless such vehicle shall have been registered." Laws 1909, p. 307, c. 259, § 8.

New York: The Highway Law of New York in effect provided that no motor vehicle shall be used or operated upon a public highway unless the owner shall have caused it to be registered. Consol. Laws, c. 25; Laws 1909, c. 30. Tennessee: "Before any owner of any automobile shall operate or permit to be operated any automobile upon any street, road, highway, such owner shall register such automobile with the secretary of

*

§ 264. Same-Burden of proof. On the theory that presumptions both of law and fact are always in favor of innocence, the burden of proving that the plaintiff in an action to recover for personal injuries was operating an unregistered automobile or was operating without a license at the time of the accident complained of, is on the defendant.33

Of course, if the plaintiff seeks to charge the defendant with such a violation of law, the burden is on him to prove that fact.

It is consequently unnecessary, in an action to recover for injuries due to the common law negligence of the operator of an automobile, to allege that the machine was registered, as required by statute.34

So, in an action to recover for damage to an automobile, the fact that the plaintiff did not prove that he had a state license to operate the machine, as required by statute, was no ground for nonsuit.35

If it affirmatively appears that a party to a suit, involving the use of an automobile on the highways, was operating an unregistered car, the opposing party is entitled to the advantage of such proof.36

$265. Permitting use of unregistered automobile. In Massachusetts it is held that if the owner of an automobile, which is not registered as required by statute, expressly or impliedly permits another to use it upon the public highways, and the latter negligently injures some one, such owner is liable therefor, regardless of whether the operator is acting for the owner or is merely pursuing his own business or pleasure. Of course, if the automobile, although unregistered, is taken and used by another without the owner's consent, express or implied, the latter is not liable for injuries inflicted by its operation.87 The owner is liable for damage done by the car without regard to whether or not the driver was negligent.38

The contrary has been held in another state, and no doubt will be held in all states taking a contrary view to that of the Massachusetts court on the question of unregistered automobiles being outlaws on the highways.39

state." A violation of any provision of the statute was made a misdemeanor. Acts 1905, c. 173.

* * *

Washington: "No automobile shall be used or operated on any public highway within this state until the owner shall have complied with sections" of the act requiring registration. Rem. & Bal. Code, § 5562. Wisconsin: "No automobile shall be operated or driven along or upon any public highway of the state, unless the same shall have been registered."' St. 1915, § 1636-47.

33 Lyons v. Jordan, 117 Me. 117, 102 Atl. 976 (1918); Conroy v. Mather, 217 Mass. 91, 104 N. E. 487, 9 N. C. C. A. 838n, 52 L. R. A. (N. S.) 801 (1914); Feeley v. Melrose, 205 Mass. 329, 91 N. E. 306, 9 N. C. C. A. 832, 27 L. R. A. (N. S.) 1156 (1910); Trombley

v. Stevens-D. Co., 206 Mass. 516, 92 N. E. 764, 2 N. C. C. A. 860, 8 N. C. C. A. 1087 (1910); Dean v Boston Elev. R. Co., 217 Mass. 495, 105 N. E. 616, 9 N. C. C. A. 838 (1914).

34 McNeil v. Webeking, 66 Fla. 407, 63 So. 728 (1913).

35 Shaw v. Thielbahr, 82 N. J. L. 23, 81 Atl. 497 (1911).

36 Conroy v. Mather, 217 Mass. 91, 104 N. E. 487, 9 N. C. C. A. 838n, 52 L. R. A. (N. S.) 801 (1914); Doherty v. Ayer, 197 Mass. 241, 83 N. E. 677, 9 N. C. C. A. 938n, 14 L. R. A. (N. S.) 816, 125 Am. St. Rep. 355.

87 Gould v. Elder, 219 Mass. 396, 107 N. E. 59 (1914).

38 Pierce v. Hutchinson, 241 Mass. 557, 136 N. E. 261 (1922).

39 Brown v. Green & Flinn, 6 Boyce (29 Del.) 449, 100 Atl. 475 (1917).

In Massachusetts, the owner of an automobile who permits it to be used by another on the public highways when it is not registered as required by statute, is responsible for injuries caused by its negligent operation, although it is being used solely in the business of such other person.40

§ 266. Dealer's number on automobile operated by private owner. The plaintiff was the general owner of an automobile, which was driven by him at the time he suffered injury on account of an alleged defect in a public street, and the machine was not registered. He testified, however, that at the time in question it was controlled by his employer; that his employer was a dealer in automobiles, and this car was used as a shop car, and bore the distinguishing numbers which had been assigned to his employer; that the numbers were put upon the car by his employer's consent; that the car was supposed to be used by anyone in the shop who wanted to use it, and that he had come to such an agreement with his employer. It was held that whether the car was really under the control of the employer and carried the distinguishing numbers which lawfully had been assigned to him, and so was to be "regarded as registered" under the statute, should have been submitted to the jury with the other issues in the

case.

41

Where the owner of an automobile, in good faith, placed it in the garage of a dealer for sale, giving the dealer full possession and control over the same, and the owner thereafter borrowed the car, and while operating it with the dealer's registration number attached thereto it was damaged by a collision with another machine, it was held that he was not precluded from recovery by a statutory provision that no recovery shall be had by the owner of a motor vehicle which has not been registered for any injury to person or property received by reason of the operation of said motor vehicle on the public highways; the dealer's number being lawfully used on any motor vehicle owned "or controlled" by him. It was also declared that it would not be lawful for an owner merely to store his car in a dealer's garage for the purpose of operating under the dealer's license or registration number. In this case, however, the car was lawfully in the control of the dealer.42

§ 267. Use of manufacturer's number. A license number issued to a manufacturer of automobiles to cover all of its cars, cannot be used on a truck used by the manufacturer in the conduct of its business, whether such truck was manufactured by it or purchased from another.43

40 Gondek v. Cudahy Pkg. Co., 233 Mass. 105, 123 N. E. 398 (1919).

41 Holland v. Boston, 213 Mass. 560, 100 N. E. 1009 (1913).

42 Shaw v. Connecticut Co., 86 Conn. 409, 85 Atl. 536 (1912).

43 The statute relates to motor vehicles manufactured by any person or company, and the shipment, delivery,

demonstration, and operation thereof in the course of sale upon highways. A motor truck employed in the conduct of the business, whether purchased from another maker or made by the company so devoting the same to purely commercial purposes, such as the trucking business of the company, does not fall within the permitted reg

§ 268. Automobile operated for pleasure under dealer's registration. It has been held that an automobile registered under a statutory provision "to purchase, demonstrate, sell, and exchange automobiles," being used for pleasure alone, was the same as if not registered at all.44

§ 269. Effect of using borrowed number plates. Number plates loaned by a dealer to the owner of an automobile, was held in Massachusetts not to justify the operation of the car on the highways by the owner. In short, the car was not legally registered. It was also held that the lender of the plates could be held liable for damages caused by the operation of the car on the public highways.45

§ 270. Effect on registration of death of owner. In Massachusetts the statute expressly provides that "application for the registration of motor vehicles may be made by the owner thereof." The certificate issued thereon by the highway commission "shall contain the name, place of residence and address of the applicant * and contain such further information as the commission may determine." Further, "upon the transfer of ownership of any motor vehicle its registration shall expire;" but the owner may obtain a rebate, or may register in his name another motor vehicle for the remainder of the year.

It was held that, where the owner of an automobile died after application for registration was made, the widow of deceased had no right to operate the car under such registration, and that in doing

istration of motor vehicles by manufacturers. Such use is in its very nature a private one, and clearly outside of permitted operation upon the public highways of the motor vehicles manufactured by the company. Nothing in

other sections of the statute militates against this view. The law does not admit of manufacturers operating motor trucks upon the highways, in the general conduct of the business of the factory, under a manufacturer's number." People v. Wirth, 218 Mich. 493, 188 N. W. 390 (1922).

44 Cobb v. Cumberland Co. P. & L. Co., 117 Me. 455, 104 Atl. 844 (1918).

45 He knew, or at least is presumed to know, that the operation of the machine upon the highway with his number plates upon it was illegal and would create a nuisance. He must have contemplated the natural and probable result of his act in lending the plates and the operation of the car thereafter by Dundon. The jury could have found that Rawson's act contributed to the ereation of a nuisance in violation of the rights of travelers upon the highway, that if injury was caused to any

person lawfully traveling upon the way by reason of the operation of the automobile that those who were responsible for its presence there would be held liable, that he intentionally assisted and participated in the creation of the nuisance and is liable for any injurious consequences resulting therefrom. In these circumstances it is not necessary to prove that Dundon acted as his agent or was negligent. The defendant is presumed to know that the car could not have been lawfully operated without number plates. The fact that he furnished them to Dundon is affirmative evidence that he knew they were required. If he had not furnished them it may fairly be assumed that Dundon would not have attempted to operate the car. From his act in lending them, it could have been found that he furnished means and facilities for the unlawful operation of the car and thereby aided and abetted in the creation of the nuisance; on such a finding he would be liable for the direct injury resulting therefrom.'' McDonald v. Dundon, 242 Mass. 229, 136 N. E. 264 (1923).

so she was a trespasser on the highways, and the automobile a nuisance.46

§ 271. Failure to remove registration tags when car is sold. Under a statute providing that upon the sale of any motor vehicle the delivery thereof shall not be deemed to have been made until the vendor shall have removed his number plates therefrom, one who secured a license and number plate to operate his car for hire during the year 1916, and who failed to remove the plates when he sold the car, is conclusively presumed, as far as the rights of the public are concerned, to be the owner and operator of the car at least for such year, and whoever was operating the car with such number is presumed to be his agent.47

§ 272. Who must register automobile. A statute requiring the owner or custodian" of any automobile to register the same within a certain number of days after "acquiring" it, has reference to persons having an independent and permanent interest in an automobile, and does not include a servant, or a person having only temporary control thereof.48

The word owner, as used in a statute prohibiting recovery for damages to an automobile unless it is registered by the owner, includes a person having a special interest in the car. "We know that the word 'owner' is often used to designate the person having an interest in property under a special title, and it is our opinion that it was so used in the provisions of the statute relating to motor vehicles. The word has different meanings, and must have its proper significance in each case in view of the subject, the object, and the provisions of the statute in which it is found. A bailor may have a general and a bailee a special ownership in the subject of the bailment. The word "owner" includes one in possession of a car

49

46 Fairbanks v. Kemp, 226 Mass. 75, 115 N. E. 240 (1917).

47 Peters v. Casualty Co., 101 Wash. 208, 172 Pac. 220 (1918).

48 Armstrong v. Sellers, 182 Ala. 582, 62 So. 28, 9 N. C. C. A. 836 (1913).

49 Brown v. New Haven Taxicab Co., 92 Conn. 252, 102 Atl. 573 (1917).

This court has held that a person who hired a carriage for a limited time had a special property in it in the meaning of a statute which provided a remedy against one who shall drive against any vehicle and injure its owner. Camp v. Rogers, 44 Conn. 291, 298.

"In Downey v. Bay State Street Railway, 225 Mass. 281, 284, 114 N. E. 207, it was decided that the vendee under a conditional sale contract may be considered an owner of a motor vehicle under the registration statute; and the word 'owner' includes, not

only persons in whom the legal title is 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. See Hurnanen v. Nicksa, 228 Mass. 346, 117 N. E. 325. While the statute is complied with if the purchaser under such an agreement registers the automobile in his name as the owner, the real owner, in whom the title remains, may register it in his name as the owner, and the vehicle will be properly registered and can be legally operated on the highway. The statute does not insist that the motor vehicles shall be registered in the names of both the vendor and vendee; it may be registered in the name of either, and if this is done the statute is not violated. Shufelt v. MeCartin, 235 Mass. 122, 126 N. E. 362,