Shuba v. Greendonner

Taylor, J. Defendant and his son, Carl, a minor over sixteen years of age, resided in the State of Connecticut. A Ford car, driven by the son, collided with a bus driven by plaintiff Carson Baker on a New York State highway whereby Carl Greendonner and one of the bus passengers were killed and the plaintiffs in the several actions on appeal were injured. The actions were tried together and the jury found for defendant. Appellants are here on a short record to raise the sole question whether the defendant was erroneously allowed to introduce testimony to the effect that he was not the owner of the Ford car at the time of the collision. For the purposes of this appeal counsel have stipulated that there was sufficient evidence to justify a jury finding that the driver, Carson Baker, was guilty of contributory negligence in the operation of the bus; that the other plaintiffs, appellants, were also guilty of contributory negligence, and that Carl Greendonner was free from negligence. Section 1561 of the Connecticut General Statutes, which is in evidence, reads as follows: “ Motor vehicles owned by minors. The commissioner shall not register any motor vehicle owned by any person under sixteen years of age and shall not register any motor vehicle owned by any person between sixteen and twenty-one years of age unless such person shall file proof of financial responsibility in accordance with the provisions of section 1609, together with a certificate signed by either or both of the parents, as the commissioner may require, or the legal guardian of such person, approving or requesting the registration of such vehicle.” The record shows that Carl Greendonner never complied with this statute. Defendant testified that he registered the Ford car and took the license plates in his own name, insured the car in his own name and sold it the day after the mishap, but that he never drove the car nor paid toward its upkeep. He also testified that he was familiar with the Connecticut statute above quoted. He was permitted to present testimony indicating that his son, Carl, bought and paid for the car, in an effort to rebut the presumption of his own ownership resulting from the registering of the car in his own [568] name. This testimony, if believed, was sufficient to establish as a fact that the son, not the father, was the owner of the car. I heartily concur in the statement that a person should not be allowed to profit from his own wrong. But that maxim is not of controlling importance in determining the exact question of procedure before us here, as I shall endeavor to show. . The transaction carried out by the father and son in Connecticut with reference to the car is not primarily attractive, but we conclude that it does not prevent defendant in the instant case from making the proof specified. The father’s fraudulent acts — characterizing them thus for the purposes of this opinion—'may have been intended to furnish the basis of a claim of ownership in the father in case the Connecticut authorities should proceed against the son for driving the car without registering it. This course of conduct might sometime have been a matter of interest to the State of Connecticut and its citizens as a subject calling for law enforcement against Carl Greendonner had he lived, possibly against defendant. But the father’s conduct, even if it were accompanied by the plan and purpose just stated, should not prevent him from proving the truth as to the ownership of the car in the present action, for the reason that neither these plaintiffs nor Carl Greendonner nor the driver of the bus either did anything or omitted to do anything involved in the collision in reliance upon or affected by defendant’s conduct in registering the car. None of the facts and transactions involved in the car registration had anything to do with the happening of the accident. (Messersmith v. American Fidelity Co., 187 App. Div. 35, 40; affd., 232 N. Y. 161; Worsham Buick Co. v. Isaacs, [Texas Commission of Appeals] 51 S. W. [2d] 277.) The reasoning of Judge Cardozo in the Messersmith case applies here. There it was urged by the defendant insurer that a father should not recover li ability insurance for the reason that bis infant son who injured a third person while driving the father’s car had been willfully directed by his father to drive the car in violation of law; that this willful and active participation in an act interdicted by law should estop the father; that he should not profit from his insurance contract because of his own wrong. But even though the statute forbidding the infant to drive a car was enacted to protect users of the highways in general from the careless acts of immature drivers, still the court said that careless driving by the son and injury resulting therefrom had not been in the father’s contemplation when he gave the car into the son’s use; that the father “ did not desire or intend that there should be an injury to travelers;” that—• wantonness not being claimed—'negligence [569] was the thing insured against whether that of the owner or of his appointee. So here. Escape from liability on account of negligent driving of the Ford car was not contemplated by this defendant father when he participated in the purchase and registration of the car. It could not have been. If the son had caused injury to a third person the son could have been held as the immediate actor and the father’s chances of escape from liability — had he been sued —■ would hardly have been improved by the registration of the car in the father’s name. Furthermore, if the father had caused injury while driving the car himself, he could have been held hable as the direct perpetrator of the wrong and the registration in his own name would, of course, not have been advantageous to him. The opinions in Brown v. Shyne (242 N. Y. 176) ; Corbett v. Scott (243 id. 66), and Klinkenstein v. Third Ave. R. Co. (246 id. 327, 332, 333) are also helpful by analogy in arriving at the correct implications from the set of facts we have under consideration. Estoppel is never employed as a means of inflicting punishment for an unlawful or wrongful act. (Worsham Buick Co. v. Isaacs, supra.) In the present circumstances there is no ground of estoppel as a matter of law. The truth as to the ownership of the car was the object of the jury’s quest, the artifices, methods and motives of this defendant being of collateral importance only. It must be remembered, too, that we are passing upon the competency of testimony and not upon the merits of jury findings. The trial court correctly received the evidence proffered by defendant for the purpose mentioned and the judgment appealed from should be affirmed, with costs. On each appeal: All concur, except Edgcomb and Crosby, JJ., who dissent and vote for reversal on the law in separate opinions. Present —■ Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ.