123 N.E. 737 | NY | 1919
The plaintiff has recovered a verdict against the defendants for injuries received in an automobile collision at the intersection of Fisher avenue and Orawaupum street in the city of White Plains, New York, on Sunday the seventh day of July, nineteen *446 hundred and twelve. The judgment has been affirmed by the Appellate Division of the second department, two justices dissenting. The defendant Clinton G. Swackhamer, who is the only appellant, was the owner of the car which, at the time of the accident, was being driven by his brother-in-law, Oscar Haight, the other defendant. The only question presented is whether there is any evidence to sustain the finding that Haight was driving the automobile for and on behalf of the defendant Swackhamer, and while engaged in his business. In our opinion the evidence warrants no such conclusion.
On the day in question, guests had come to Swackhamer's house in White Plains for dinner which had been prepared by his wife and Mrs. Mary Haight, his mother-in-law. After dinner Mrs. Haight asked Swackhamer to take her home in his car which at that time was standing in the street in front of the house. She lived some blocks away. Swackhamer replied that he could not do so as he was obliged to go at once to Rye Beach, and then proceeded upstairs to wash and dress himself. In his absence, Mrs. Haight turned to her son, the defendant, Oscar Haight, and asked him if he would drive her home. Haight worked for Swackhamer in the coal business in White Plains, and had at times run the defendant's car from the shed in the coal yard to the office and at other times had taken the wheel while the defendant was giving him operating instructions. He was not the defendant's chauffeur but an assistant yard foreman with no work or employment, whatever, in his occupation on Sundays. Haight was present at the Sunday gathering in his brother-in-law's house as a guest and not as an employee engaged in the business of his employer.
Responding to this personal request of his mother, Haight proceeded to take her to the car in order to drive her home. He was asked by another guest, Henry B. Jones, where he was going and if he, Jones, could go along too. Jones thereupon invited two young ladies, *447 Miss Gerrard and Miss Murray, who were sitting upon the porch with him and were also guests at the house, to take a ride. Haight left his mother at her house and then at the suggestion of Jones ran down to Hartsdale through Greenacres, a distance of a mile and a half or more, and when returning collided with the car in which the plaintiff was riding at the intersection of the streets above mentioned. The defendant Swackhamer testified that he knew nothing about his car being taken by Haight until after the accident, that he did not authorize him to take these people out for a ride, and in this he is supported by Oscar Haight and likewise by Mrs. Mary Haight, his mother-in-law.
Should we consider Swackhamer and these relatives interested witnesses, yet we have the testimony of Henry B. Jones, a passenger conductor on the New York Central railroad, and of the young ladies, Violet Gerrard and Dorothy Murray, to corroborate them.
By positive, unshaken testimony from six witnesses, not in the least improbable, suspicious or inconsistent with any uncontradicted fact in the case, it is shown that Haight drove the car on this Sunday afternoon for purposes of his own and not at the request of the owner or upon the owner's business. Under such circumstances Swackhamer is not liable.
The only evidence in behalf of the plaintiff is the presumption which arises from the ownership of the car, but as has been stated by this court such presumption continues only so long as there is no substantial evidence to the contrary. (Potts v.Pardee,
Even if it could be fairly presumed from the evidence that Haight had Swackhamer's consent to take his car for the purpose of taking his mother home this would not be sufficient to make the latter liable. An owner who gratuitously loans his car to a servant or even to a member of his family for such person's own particular pleasure or business is not liable for an accident thereafter happening. The person driving, whether the servant or agent as a member of the family, must at the time be engaged in the owner's business or purpose to render him liable. The son certainly was as much interested in his mother's welfare as the son-in-law, and the inference should not be drawn that the son-in-law was more anxious to have her leave his house than the son was to comply with her request to take her home. When, therefore, Haight, at the request of his mother, took her in Swackhamer's car to her house he was doing his duty as a son and enjoying the pleasures of that relationship. The mere ownership of the car is not evidence that Haight under such conditions was driving for or on behalf of his brother-in-law.
We, therefore, are of the opinion that this judgment must be reversed and a new trial granted, with costs to abide the event.
COLLIN, CUDDEBACK, CRANE and ANDREWS, JJ., concur; HISCOCK, Ch. J., CARDOZO and POUND, JJ., dissent.
Judgment reversed, etc. *449
