Cusack v. William Laube & Co., Inc.

• Decision Date: 29 May 1926
• Citation: 104 Conn. 487,133 A. 584
• Parties: CUSACK v. WILLIAM LAUBE & CO., INC.
• Court: Connecticut Supreme Court

133 A. 584

104 Conn. 487

CUSACK v. WILLIAM LAUBE & CO., INC.

Supreme Court of Errors of Connecticut.

May 29, 1926

Appeal from Superior Court, Fairfield County; Leonard J. Nickerson Judge.

Action by Frank J. Cusack against William Laube & Co., Inc., for damages for injury to his automobile through the alleged negligence of the operator of the defendant's motor truck, in which the defendant filed a counterclaim, alleging negligence of the plaintiff. On trial before a jury, verdict was directed for the defendant on the complaint, and for plaintiff on the counterclaim. From a judgment thereon, both parties appeal, but defendant, during hearing in Supreme Court of Errors, withdrew its appeal. Error, and new trial ordered.

Daniel E. Ryan, C. Milton Fessenden, and Matthew H. Kenealy, all of Stamford, for appellant.

Carl Foster, of Bridgeport, for appellee.

HINMAN, J.

Upon the trial it developed, and was admitted, that the plaintiff at the time of the collision for which he sought to recover damages, had not indorsed his signature on the back of his operator's license, nor had the driver of the defendant's truck so indorsed his license. Thereupon, on motion for a directed verdict, the trial court ruled that because of the plaintiff's failure to indorse his license as required by section 20 of chapter 400 of the Public Acts of 1921, his motor vehicle was being so operated in violation of that section as to bring him within the provisions of section 61 of that chapter and prevent his recovery, and that the defendant was in the same situation as to its counterclaim by reason of the failure of its driver to indorse his license, and directed a verdict accordingly. The correctness of these rulings is the only question presented by this appeal.

Section 20 of chapter 400 of the Public Acts of 1921 is as follows:

" Every person licensed to operate a motor vehicle shall, before operating any motor vehicle upon a public highway, indorse his signature on the back of his operator's license in a space provided for the purpose. Operators' licenses shall expire at midnight on the last day of February in each year. Any person who shall violate the provisions of this section shall be fined not more than twenty-five dollars for the first offense and for any subsequent offense not more than fifty dollars."

Section 61 provides that:

" No recovery shall be had in the courts of this state by the owner of a motor vehicle which has not been legally registered in accordance with section nine for injury to person or property received by reason of the operation of such motor vehicle upon any public highway, * * * nor shall such recovery be had, if such motor vehicle be legally registered but was being operated by an unlicensed person in violation of any provision of section fifteen, twenty or twenty-one of this act."

Section 1565 of the General Statutes of 1918 was practically identical with section 61 of the present statute except that the references therein were, of course, to other sections of chapter 77 of the General Statutes, including sections 1530, 1531, and 1532 instead of to sections 15, 20, and 21. Section 1532 comprised three subsections (a), (b), and (c). Subsection (a) contained provisions, now embodied in section 19 of chapter 400 of the Public Acts of 1921, for applications for numbering and recording of motor vehicle registrations and operators' licenses. Subsection (b) provided that:

" Every person licensed to operate motor vehicles shall indorse his signature on the back of his license, in a space provided for the purpose, and such license shall not be valid until so indorsed. Such licenses shall expire at midnight on the last day of February in each year."

Subsection (c) provided that such licenses shall be carried by the licensee when operating a motor vehicle upon any highway. The penalty section of chapter 77, § 1556, provided for punishment by fine for violation of subsections (b) and (c) of section 1532.

Chapter 233 of the Public Acts of 1919 was enacted as a complete substitute for chapter 77 of the General Statutes and repealed the latter. In section 16 of chapter 233, subsections (a), (b), and (c) corresponded, in substance, with the same subsections of section 1532 except that the provision in (b) that " such license shall not be valid until so indorsed" was there omitted, and has not been since re-enacted. The same section also provided for punishment, by fine, for violation of subsections (b) and (c). Section 1565 was re-enacted as section 44, being identical in substance, except changes in section numbers, including reference to section 16 instead of section 1532. In chapter 400 of the Public Acts of 1921, subsection (a) of section 16 of the 1919 act appears as section 19, (b) as section 20, and (c) as section 35, each with the penalty applicable thereto embodied in the section; section 44 of the 1919 act is made section 61, and of the above-mentioned sections refers only to section 20.

A sensible and probable reason for the important amendment in 1919 of what is now section 20 may be found in the nature and purpose of the licensing of operators as distinguished from the registration of motor vehicles. The registration certificate is for the purpose of identification and revenue. An operator's license is purely a personal privilege granted by the state on account of fitness. Shea v Corbett (1921) 97 Conn. 141-145, 115 A. 694. The indorsement of the license is, at most, a convenient aid, supplementing the personal statistics contained in the application and appearing on the license, in identifying the possessor as the person to whom it was issued, and the General Assembly may well have regarded the prescribed fine as a sufficient penalty for failure to so indorse it and the provision of the prior statute making indorsement an essential prerequsite to the validity of the license as too drastic a consequence of such failure. Whatever the incentive may have been, the provision was dropped from the statute, and there can be no question that a person who has lawfully obtained an operator's license, whether or not he has indorsed it, is a licensed operator. To hold otherwise would be to deny effect to the amendment, which cannot be regarded other than significant; nor can the equally suggestive retention in section 61 of the limitation to unlicensed persons be lost sight...