Brenner v. Walsh, 206 A.D. 469

206 A.D. 469 | N.Y. App. Div. | 1923

Finch, J.:

This is an action to recover damages for personal injuries sustained by plaintiff, who was ran over by an automobile owned by the defendant.

Upon the trial it appeared that the automobile was being operated at the time of the accident by a brother of the defendant named Edward. The defendant had asked Edward to go to the garage and wash the car. While there Edward took the car to his sister’s home without the permission of the defendant. At the sister’s home Edward found Ms mother, and she telephoned to the defendant to allow Ms brother to drive her to her home in The Bronx. Upon arriving there, defendant’s brother communicated with the defendant and was instructed to place the car in a certain garage in The Bronx until the defendant called for it. The car was placed in the garage, but later the same evening defendant’s brother took the car for the purpose of driving a friend home. Thereafter the brother picked up another friend, and the accident happened while the car was going south on St. Ann’s avenue at One Hundred and Sixty-first street. The garage is situated at One Hundred and Fifty-sixth street, two blocks east of Third avenue. The respondent urges that the ear was not m the way to the garage in The Bronx, but was on its way back to the garage in Brooklyn. Whether the car was bound for the garage in The Bronx or in Brooklyn becomes immaterial, since the facts show that the taking out of the car from the garage in The Bronx was wrongful; and this distinguishes the case at bar from those cases where the original taking out is rightful and there is a deviation from the line of duty, and then the question arises as to whether the duty is again resumed. In the case at bar, therefore, it is clear that the taking out of the car after it had been placed in The Bronx garage shows wholly an unlawful excursion, no part of which in any way can be said to be on the business of the defendant. (Der Ohannessian v. Elliott, 233 N. Y. 326.)

In the case at bar the defendant also is not Hable on the ground that it does not appear from the evidence that the brother of the defendant was at any time engaged in the business or purpose of the defendant so as to constitute the brother the servant of the defendant while driving the car. On the contrary, he was engaged upon his own particular desires or those of his mother. (Fallon v. Swackhamer, 226 N. Y. 444; De Smet v. Niles, 175 App. Div. 822.)

It foHows that the judgment appealed from should be reversed, with costs, and the complaint dismissed, with costs.

Clarke, P. J., Smith, McAvoy and Martin, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.