124 Misc. 595 | City of New York Municipal Court | 1925
It is conceded that the defendant permitted one Mishkin to use his car. The accident occurred on October 25, 1924, while Mishkin and some of his friends occupied the car. The driver was not Mishkin but one of his party.
Innumerable cases have arisen in this and other States involving the liability of owners of automobiles for damages caused by the negligent operation thereof. . Since the advent of the motor car as an important agency in our daily life, there has been a marked tendency to break away from the rigid limitation of the liability of the owner to the strict application of the doctrine of respondeat superior. In some States judicial legislation has attempted to abrogate the rules of the common law, especially in cases dealing with general and special employee, with deviation from route or instructions, and the so-called family car theory. Thus it has been held in a recent Connecticut case (Stickney v. Epstein, 100 Conn. 170) that where the pater-familias maintains a motor car for the general use and convenience of his family, he is hable for the negligence of a member of the family having general authority to drive it. The court said: “ The rule rests on the broad ground that every man who prefers to manage his affairs through others, remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others while they are engaged upon his affairs and within the scope of their authority.”
The justification for the rule, as stated by the court, is: “ We are satisfied that the same rules of public policy and social justice which entailed former extended applications of the rule respondeat superior to new situations at common law, still apply, and entail its application to the situation presented in this case.”
In this State the Court of Appeals declined to deviate from the common law in favor of the family car rule. In Van Blaricom v. Dodgson (220 N. Y. 111) the court says (at p. 117): “ If, contrary to ordinary rules, the owner of a car ought to be responsible for the carelessness of every one whom he permits to use it in the latter’s own business, that liability ought to be sought by legislation as a condition of issuing a license rather than by some new. and anomalous slant applied by the courts to the principles of agency.”
The Legislature has now adopted the court’s suggestion, The
If we substitute “ operated ” for “ made,” we have the keynote of the recent legislation.
I fail to perceive how the constitutionality of this act can be questioned. It is based upon the police power which is inherent in every State for the protection of its citizens and others within its borders. This State is not the first one to pass a law subjecting the owners of automobiles to additional burdens beyond those established by the common law. In Tennessee and South Carolina statutes have been passed and held valid, which made damages due to injuries received from negligent or illegal driving a lien on the vehicle. (Merchants & Planters Bank v. Brigman, 106 S. C. 362; Core v. Resha, 140 Tenn. 408.) In Michigan a statute similar to ours has been in force since the year 1915. A prior statute was declared unconstitutional in Daugherty v. Thomas (174 Mich. 371) upon the ground that it made the owner liable for all injuries occasioned by the negligence of the driver, except where the machine was stolen. The court held that this was in violation of the due process clause of the Constitution, as it made the owner liable for the act of a mere stranger or willful trespasser, or any person not sustaining to the owner the relation of servant, agent or employee. The Michigan law of 1915 (Compiled Laws, 4825, § 29; Public Acts, 1915, 302, § 29) contains the proviso “ that the owner shall not be liable unless said motor vehicle is being driven by the express or implied consent or knowledge of such owner.” That statute was held to be constitutional in Stapleton v. Independent Brewing Company (198 Mich. 170), which case was followed in Hatter v. Dodge Brothers (202 id. 97) and Rohrer v. Schreiber (223 id. 355). And in Hawkins v. Ermatinger (211 id. 578) the provision of the statute declaring that the consent of the owner of a car to its use will be conclusively presumed when the same is driven by an immediate member of his family, was held constitutional as within the police power of the State.
The defendant also claims that the plaintiff cannot recover for the reason that the person to whom the car was loaned did not drive the car. The statute says, however, that the owner.
Nor can it be claimed that the car was not used “ in the business of such owner or otherwise.” It will not do to give these words the restricted meaning which was tentatively suggested by an eminent author in a recent article (Automobiles and Vicarious Liability, by Joseph P. Chamberlain, in volume 10, American Bar Association Journal, 788). It is there said: “It may be possible for the court to seize on the clause 1 in the business of such owner or otherwise ’ to limit the operation of the statute to chauffeurs employed in a business and to argue that the words ‘ and otherwise ’ were intended to clear up the doubt cast by the decisions as to whether the owner of the business was liable for all accidents occurring while the motor car was being driven by one of his employees, whether or not the accident occurred under such conditions that the driver could be clearly said to be in the scope of his employment.”
The words “ or otherwise ” are in enlargement o,f, and not in restriction to, the meaning of “ business.” But, disregarding the additional words, “ business ” does not necessarily mean an affair
It is not within the scope of this opinion to indulge in conjectures'of the far-reaching effects of the statute or its applicability under a state of facts easily conceivable but not present in this case. In my opinion, the complaint upon the concessions herein sets forth a cause of action and, therefore, the motion to dismiss the complaint is denied.