Heissenbuttel v. Meagher

147 N.Y.S. 1087 | N.Y. App. Div. | 1914

Hotchkiss, J.:

The plaintiff, while standing in a, public street waiting for a surface car, was struck and injured by an automobile belonging to defendant and driven by his son, a young man twenty-four years of age. This son was pursuing his studies as a law student and lived with his father as a member of his family. The automobile was a pleasure vehicle kept by defendant for the use of himself and his family; his son was privileged to use it for his individual purposes whenever he so desired. It was customary also for the son to act as chauffeur of the car when it was used by defendant or other members of the family. On the occasion of the accident the son had taken the car out for a pleasure drive accompanied by several of his friends. Neither defendant nor any other member of his family, except his son, was in the party. It is evident from these facts that when the accident happened the car was neither expressly nor constructively in the use or service of the defendant, and that in driving the car the son was in no way acting as the defendant’s agent. Under these circumstances we' hold that defendant is not liable for his son’s negligent operation of the car. The principle involved has been applied in so many cases that the citation of but a few will suffice. (Tanzer v. Read, 160 App. Div. 584; Freibaum v. Brady, 143 id. 220; Cunningham v. Castle, 127 id. 580; Maher v. Benedict, 123 id. 579.)

The judgment and order appealed from should be reversed, with costs, and the Complaint dismissed, with costs.

Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

Judgment and order reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.