245 A.D. 566, Shuba v. Greendonner

Citation245 A.D. 566
Party NameANTHONY SHUBA, Appellant, v. GEORGE J. GREENDONNER, Respondent. DONALD BUCHER, Appellant, v. GEORGE J. GREENDONNER, Respondent. LEONARD ZIMMERMAN, Appellant, v. GEORGE J. GREENDONNER, Respondent. ANGUS LA LONDE, Appellant, v. GEORGE J. GREENDONNER, Respondent. CARSON BAKER, Appellant, v. GEORGE J. GREENDONNER, Respondent.
Case DateNovember 07, 1935
CourtNew York Supreme Court Appelate Division, Fourth Department

Page 566

245 A.D. 566

ANTHONY SHUBA, Appellant,

v.

GEORGE J. GREENDONNER, Respondent. DONALD BUCHER, Appellant,

v.

GEORGE J. GREENDONNER, Respondent. LEONARD ZIMMERMAN, Appellant,

v.

GEORGE J. GREENDONNER, Respondent. ANGUS LA LONDE, Appellant,

v.

GEORGE J. GREENDONNER, Respondent. CARSON BAKER, Appellant,

v.

GEORGE J. GREENDONNER, Respondent.

Supreme Court of New York, Fourth Department.

November 7, 1935

SEPARATE APPEALS by the plaintiff in each of the above-entitled actions from a judgment of the Supreme Court, entered in the

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office of the clerk of the county of Onondaga on the 21st day of December, 1932.

The judgment in each action is for defendant in an automobile negligence action.

COUNSEL

Daniel Scanlon, for the appellants.

Jesse E. Kingsley, for the respondent in each appeal.

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

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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...

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