Andrews v. Olaff

Keeler, J. In the complaint it is alleged that Olaff secured judgment in his action against Andrews by fraud, deceit and perjury in his testimony at the trial, intentionally committed to prevent Andrews from taking advantage of Olaff’s lack of an operator’s license, and also that since the judgment Andrews had discovered new evidence contradicting Olaff’s testimony. At the trial, plaintiff made the further claim that the judgment rendered against himself in the original action was void as contravening the public policy of the State, and its enforcement should be enjoined regardless of *535 what occurred at the trial; that as Andrews’ counsel relied upon Olaff’s positive statement that he was at the time of collision a licensed operator, Olaff is es-topped to claim that Andrews and his counsel failed to exercise reasonable diligence; that Andrews did use reasonable diligence under the facts found, and was not negligent. These claims are stated in various forms in the reasons of appeal, but, as above stated, comprehend the stun of plaintiff’s assignments of error, and are such as were pursued in the brief and on argument in the instant case. The claim that the judgment rendered in the original action is void, is based on § 7 and § 47, of Chapter 333 of the Public Acts of 1917. Section 7 (a) provides that “no person shall operate a motor-vehicle upon any public highway of this State until he shall have obtained from the commissioner a license for such purpose. ” Section 47 enacts that no recovery shall be had in “the courts of this State by the owner of a motor-vehicle . . . if said vehicle be legally registered but was being operated by an unlicensed person in violation of any provision of sections seven, eight or nine of this Act.” The contention of the appellant upon this point is somewhat obscure and confused, as to whether he claims that the lack of- a license as set forth in the statutes is jurisdictional and the original action one which the court could not have entertained, or whether the result reached was entirely contrary to the public policy of the State. In either case, however, his contention seems to be that whenever, and however it may be made to appear, that an unlicensed driver has recovered in a civil action for damage to person or property, then the court is called upon by injunction to enjoin the execution of the judgment or to furnish the means of nullifying it by granting a new trial. *536 The court clearly had- jurisdiction to entertain the case,.jurisdiction both of the person and subject-matter, and Olaff, the plaintiff, was under no personal disability to bring an action. Such an action was not subject to abatement. Had it been, the course of pleading followed was not adapted to raise the question. It is undoubtedly the design and intent of the law relating to motor-vehicles, in regulating their proper and safe use, to provide for registration of the vehicle and license of the operator, and the regulations adopted have the sanction of fines for disobedience of their provisions, and also of depriving unlicensed operating owners of a recovery when injured in person and property by others upon the highway. The object was to prevent a recovery where otherwise the plaintiff would be entitled thereto. Stroud v. Water Commissioners, 90 Conn. 412, 97 Atl. 336. The additional burden has been placed on him to allege and prove registry and license as indispensable requisites of recovery. Dewhirst v. Connecticut Co., 96 Conn. 389, 114 Atl. 100. The object of the law is to make it highly advisable and distinctly popular for operators to obtain licenses, and decidedly, hazardous and indiscreet not to do so. Olaff came into court with a burden of proof regarding his right to operate,, but he was under no disability to sue, nor was the court without jurisdiction to hear his plea. When the trial of the action was about to begin, it became apparent to counsel that neither had alleged the licensing of their respective clients, and amendment of the complaint and of the defendant’s counterclaim was suggested. Had such amendments been made, the allegations thereof would have been admitted or denied. If admitted, precisely the same result would have been attained as was effectuated by the stipulation read into "the record. The stipulation was a substitute for proof, and dispensed with evidence.. *537 When the cause was tried and judgment rendered, there appeared of record, not a case in which an unlicensed operator had received judgment in his favor, but in which a licensed operator had taken judgment. Defendant had a right to require proof of this fact; he had an equal right to waive proof, either by an admission of a paragraph plead, or by the terms of a stipulation regarding the fact. In either event the fact was in the record, binding the parties, the jury and the judge. Nothing had been done which contravened the public policy of the State and required the courts of the jurisdiction to nullify the judgment at all events and in any possible way, since the matter concerned a private and not a public right. There is no merit in the contention that the judgment rendered was void, for want of jurisdiction in the court, or because contrary to public policy. Passing to the question of due diligence on the part of Andrews in not advising himself of the facts regarding Olaff’s license, which is the principal point in the instant case and the one on which the trial judge placed his decision, we have to observe at the outset that the trial judge has found a lack of diligence as an ultimate fact, which must stand if reasonably supported by the subordinate facts appearing in the the record. The attitude of counsel on both sides of the controversy, as to the fact of their respective clients having operators’ licenses as disclosed in the finding, shows that to none of them had the fact appeared important; apparently it had not occurred to either of them until they were in court to commence the trial. Each of them had had nearly three years in which to ascertain the fact, easily and expeditiously obtainable by inquiry at Hartford; The fact assumed great importance in the mind of Andrews’ counsel directly after judg *538 ment in the action. That he did not realize its importance before, is a clear indication of negligent preparation, and an example of wisdom after the event. Due diligence .is manifested by foresight, and a want of it is not excused by activity following disaster. Counsel on neither side were deceived or lulled to sleep by the statement made by opposing counsel; each seemed entirely satisfied by the assurances given in regard to licenses by the parties litigant. Their apparent interest was in keeping the record straight, rather than ascertaining a doubtful fact. A stipulatory agreement thus arrived at ought not to be disturbed, or relief afforded contravening it, unless- one party deceived the other by false and fraudulent statements known to be untrue, or recklessly made without regard to the fact or definite information. The court has found that Olaff was honestly ignorant of the fact that his license was not issued till June 6th, that he had not examined it with sufficient care to be sure, and in good faith assumed that after approval of his application by the inspector he was authorized to operate his motorcycle, and that in stating to his counsel that he was licensed he did so with an honest belief that such was the fact. Much is made of the fact that Olaff gave testimony at the trial to the same effect as his statement to his counsel, and Andrews’ counsel claim that he committed wilful perjury which resulted in still further deception. He was not called upon to give any such testimony, and it might have been excluded on objection. 5 Wigm. Ev. (2d Ed.) §2591.- The' stipulation entered into was conclusive as to the fact covered thereby. Andrews could not have introduced testimony contradicting it. 5 Wigm. Ev. (2d Ed.) § 2588. However, he was on the stand apparently testifying without objection, he reiterated his former statement as to the fact of having a license and that he had a license on June 5th, and in fact had the li *539 cense in his pocket. Then was the time for Andrews’ counsel to ask if Olaff had it and for its production; it would have disclosed the inaccuracy of his former statement, and the court would without doubt have favorably entertained amotion to cancel the stipulation. Not to do this, showed a want of diligence exceeding the lack of care in not having made inquiry as to the fact during the space of nearly three years preceding the trial. • Furthermore, the fact that Olaff brought this license with him is evidence of entire good faith. If he had known that it would contradict his previous statement, and the testimony he was about to give, and would disastrously affect his case, then, if he was dishonest, he-had only to come to court without it, and excuse its nonproduction, if requested, by the assertion that he had lost or mislaid it. The license was issued in June, 1918, and the trial took place in November, 1921; that the license should not be at hand after that interval of time, would have been readily accepted as an ordinary occurrence and most probable. The contention that Olaff is estopped to make his claims in defense of the present action, is without foundation in law, and is equally unavailable upon the facts .of the case. It is evident from the facts found, that the lack of diligence of counsel was entirely unconnected with any statements made by him. Nothing that he said led them to neglect inquiry for nearly three years, nor to refrain from asking for the production of the certificate which Olaff had in his pocket. The ultimate conclusion of the trial judge was correct, and it is difficult to see how he could have reached any other result. There is no error. In this opinion Wheeler, C. J., Beach and Curtis, Js., concurred.