Gonchar v. Kelson

Decision Date09 February 1932
Citation114 Conn. 262,158 A. 545
CourtConnecticut Supreme Court
PartiesGONCHAR v. KELSON et al.

Appeal from Superior Court, Litchfield County; Arthur F. Ells Judge.

Action by Paul Gonchar against Lester Kelson and Napoleon Roy to recover damages for personal injuries alleged to have been caused by the defendants' negligence and by a nuisance maintained by them, brought to the Superior Court where a demurrer to the complaint by the defendant Roy was sustained and, the plaintiff failing to plead over, judgment was rendered for the defendant Roy, from which the plaintiff appealed.

No error.

David Cramer, Harry Ossen, and Sully I. Berman, all of Torrington for appellant.

John C. Blackall and Charles H. Blackall, both of Hartford, for appellee Roy.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.


This action is brought by the plaintiff to recover damages for injuries suffered by him when struck by an automobile owned and driven by the defendant Kelson. The complaint joined as defendant Napoleon Roy, and, as ground for liability on his part alleged that, while Kelson owned the automobile, it was not registered, but, with intent to violate and in violation of the laws of this state, he had procured from Roy number plates known as dealers' license plates which had been issued to Roy and which Kelson was displaying upon the car at the time of the accident; that Roy knowingly, intentionally, and illegally transferred the plates to Kelson to be used in the operation of the automobile upon the highways; that that operation constituted a nuisance; and that the injuries sustained by the plaintiff were caused by the negligence of the two defendants, or by their acts in creating and maintaining a nuisance. After making these allegations, the complaint went on to state that Kelson " was also negligent" in various ways; among them, in that he failed to have his car equipped in a proper manner as required by law. The defendant Roy demurred to the complaint on various grounds which may be summarized as stating that the facts alleged showed no cause of action against him. The trial court sustained the demurrer, and, the plaintiff failing to plead further, judgment was entered for Roy, from which the plaintiff has appealed.

Our statute provided, when the accident here involved occurred, and still provides that, before any motor vehicle shall be operated upon any highway, it shall be registered in the office of the commissioner, and that any person who shall operate or allow to be operated any such vehicle upon any public highway before it has been registered shall be subject to a certain penalty. When the Legislature establishes a rule of conduct by statute, and its purpose in so doing is to protect others from injury, a violation of that rule of conduct constitutes negligence. Farrell v. Waterbury Horse R. Co., 60 Conn. 239, 247, 21 A. 675, 22 A. 544; Pietrycka v. Simolan, 98 Conn. 490, 495, 120 A. 310. In order to have that effect, however, the statute must be one intended to accomplish such protection. Anthony v. Connecticut Co., 88 Conn. 700, 707, 92 A. 672; Longstean v. McCaffrey's Sons, 95 Conn. 486, 493, 111 A. 788; Black v. Hunt, 96 Conn. 663, 666, 115 A. 429. We have repeatedly said that the purposes of the law requiring the registration of motor vehicles were identification and revenue. Shea v. Corbett, 97 Conn. 141, 145, 115 A. 694; Cusack v. Laube & Co., 104 Conn. 487, 490, 133 A. 584; Morse v. Lash Motor Co., Inc., 107 Conn. 137, 141, 139 A. 637. These decisions were all made, however, with reference to accidents occurring before amendment of the motor vehicle law in 1927, under which the commissioner was directed to refuse registration to any vehicle which he knew not to be equipped as required by law. Pub. Acts 1927, c. 311, § 1 amended by Pub. Acts 1929, c. 297, § 2 (Gen. St. § 1558) amended by Pub. Acts 1931, c. 264, § 2 (Gen. St. Supp. 1931, § 275a). This change in the statute concerning registration marks an extension of the purpose of the law to assure to the extent of proper equipment protection of other users of the highway by requiring as a condition precedent compliance with the provisions of law governing such equipment before a motor vehicle can lawfully be operated upon the highways. The complaint in this action claims a recovery against Roy, not on the ground that he contributed to the production of negligence of any particular kind, but because of his contributing to bring about the fact that Kelson's automobile was being driven upon the highways without a proper registration. In order to base a recovery upon negligence in the violation of a statute, it must appear that the injury suffered was of a nature which the statute was intended to guard against. Bourne v. Whitman, 209 Mass. 155, 167, 170, 95 N.E. 404, 35 L.R.A. (N. S.) 701; 45 Corpus Juris, p. 727. " The violation of a statute which forbids the doing of certain acts does not give a cause of actionable negligence in favor of private individuals unless the statute was designed to prevent such injuries as were suffered by the individual claiming damage and unless it imposes upon the one violating the statute a specific duty for the protection or benefit of him who claims damage for the violation." Longstean v. McCaffrey's Sons, supra, 95 Conn. page 493, 111 A. 788, 792. " It is a well-settled rule that a person cannot recover from another for negligence based upon the violation of a statute or ordinance which is not intended for his protection. The rule which is applicable to actions for negligence based upon the violation of a statutory duty is to all intents and purposes the same as the rule applicable to actions for negligence based upon a violation of a common-law duty. Where there is no duty, there can be no negligence." Anthony v. Connecticut Co., supra, 88 Conn. page 707, 92 A. 672, 674. In so far as the particular purpose of the amendment of the statute to protect users of the highway against the operation of motor vehicles without proper equipment is concerned, the allegations of the complaint are insufficient to support a recovery.

We turn then to the broad ground of recovery alleged, that the mere operation of an unregistered automobile upon the highways in violation of a statute constitutes negligence. Obviously if such operation affords a ground of recovery for one who is injured in the course of it, it would equally afford a ground to defeat recovery by one who suffers injury by the negligence of another. A section of the motor vehicle law adopted in 1911 expressly provided that no recovery could be had in the courts of this state by the owner or operator of, or any passenger in, a motor vehicle which was not legally registered for any injuries to person or property received by reason of its operation upon the public highways of the state, with a certain exception applicable to vehicles owned by nonresidents. Pub. Acts 1911, c. 85, § 19. In 1917, the statute was amended to leave out the prohibition against a recovery by an operator of, or a passenger in, an unregistered automobile. Pub. Acts 1917, c. 333, § 47. In 1929, this provision of the motor vehicle law was finally repealed in its entirety. Pub. Acts 1929, c. 256. Before the enactment of the law of 1911, one case came before us in which a recovery was sought by the owner of a motor vehicle which was not properly registered, and we held that he was not by that fact prevented from recovering his damages on the ground that his breach of law in operating the car without a proper registration could not be deemed to have contributed to the accident. Hemming v. New Haven, 82 Conn. 661, 74 A. 892, 25 L.R.A. (N. S.) 734, 18 Ann.Cas 240. It is true, however, as the appellant points out, that we noted that the statute then in existence did not make unlawful the operation of an unregistered automobile upon the highways, and expressly distinguished the case of Dudley v. Northampton Street Ry. Co., 202 Mass. 443, 89 N.E. 25, 23 L.R.A. (N. S.) 561, on the ground that the Massachusetts statutes did contain such a prohibition. In Shaw v. Connecticut Co., 86 Conn. 409, 85 A. 536, decided under the statute, we overruled a claim that the owner of a vehicle was debarred a recovery because at the time of the accident it displayed the number plates of an automobile dealer, holding that under the circumstances of the case the owner had the right to be operating it with those plates; but we did say (page 413 of 86 Conn., 85 A. 536, 537): " When a car is duly registered, the registration number attaches to the car. Without such registration number it cannot be lawfully operated upon the highways; it is a nuisance there." The statement that such a car is a nuisance we neither supported by reasoning nor did we discuss its subject-matter; and now that we are faced with a situation where the question of liability in part at least turns directly upon the correctness of that assertion we cannot regard it as controlling. On the other hand, in Kaufman v. Hegeman Transfer & Lighterage Terminal, 100 Conn. 114, 121, 123 A. 16, 19, also decided under the provisions of the statute, in considering the question as it was involved in a situation where an automobile had been transferred, we said: " The Legislature in its wisdom has determined that public policy requires a new registration with each transfer, and that the general rule...

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