GEORGE OSTERTAG & another vs. HAROLD D. CAHALIN.

GEORGE OSTERTAG & another vs. HAROLD D. CAHALIN.

343 Mass. 523

December 5, 1961 - February 1, 1962

Middlesex County

Present: WILKINS, C.J., SPALDING, WILLIAMS, WHITTEMORE, & SPIEGEL, JJ.

St. 1959, c. 259, amending G. L. c. 90, Section 9, did not apply retroactively in the determination of the substantive rights arising from an accident involving an illegally registered automobile occurring before its enactment.

TORT. Writ in the Superior Court dated March 26, 1959.

The action was heard on an auditor's report by Tomasello, J., who ordered entry of judgment for the defendant.

The case was submitted on briefs.

John A. Fiorentino, for the plaintiffs.

Arthur J. McLaughlin, for the defendant.

WILKINS, C.J. In this motor tort action the plaintiffs, husband and wife, have been denied recovery because their car was illegally registered in the name of the wife and the husband had knowledge of the illegal registration. The accident occurred in Arlington on November 30, 1958. The writ is dated March 26, 1959. Subsequently, the Legislature enacted St. 1959, c. 259, amending G. L. c. 90, Section 9, entitled, "An Act providing that the failure to register or the improper registration of a motor vehicle shall not be deemed to render the vehicle a nuisance or to render any person a trespasser upon a way." This was intended as an abolition of the rule of Dudley v. Northampton St. Ry. 202 Mass. 443 . See Comeau v. Harrington, 333 Mass. 768 ; Thirty-Third Report of the Judicial Council (1957), Pub. Doc. 144, pp. 13-17; Thirty-Fourth Report of the Judicial Council (1958), Pub. Doc. 144, pp. 91-93. However unsound, that rule settled the substantive rights of the parties. See Bucher v. Fitchburg R.R. 131 Mass. 156 , 158. There is

Page 524

no express mandate to make St. 1959, c. 259, retrospective, and no such intention appears by necessary implication. Hanscom v. Malden & Melrose Gas Light Co. 220 Mass. 1 , 3. Welch v. Mayor of Taunton, ante, 485, 487-488. Hence, the amendment is confined to prospective operation.

Exceptions overruled.