203 A.D. 232 | N.Y. App. Div. | 1922
The plaintiff was a passenger in an automobile and received injuries arising out of its collision with another. The other automobile was owned by the appellant, Edward S. Wilson, but was being driven at the time by the son of the appellant, namely, the defendant Kenneth Wilson. The son was twenty-two years of age and apparently had had plenty of experience as a driver. The father, Edward S. Wilson, was not present. The only other person in the défendant’s car at the time was another young man, a friend of the son, who worked in the same factory with the son at the time, a business apparently having no relation to the business of the father. The father ran a lunch room and a pool room where he also sold cigars and confectionery. The father had no business use for the car so far as the record shows and he testifies that he had no other purpose in purchasing the car than the pleasure and convenience of his family. He says he never drove the car himself; that at times he had ridden in the car when the son drove it; that on this particular occasion he did not know that the car was being driven; that the son was on no errand for him at the time; that he never paid his son for any services in driving the car and that the son paid his own expenses if he took the car. The son testifies that during the year or more after his father had owned the car he, the son, had driven the car considerably; sometimes at the request of his father; sometimes at the request of his mother or other members of the family and sometimes for his own sole purpose. When he wished to use the
The sole issue presented upon this appeal is with reference to the liability of the.defendant, appellant, Edward S. Wilson, the owner of the car. The plaintiff introduced no testimony with reference to the liability of that defendant, relying upon his conceded ownership and the presumption of law that, being the owner of the car, it was in use for his benefit and on his own account. (Ferris v. Sterling, 214 N. Y. 249.) “ The presumption growing out of a prima facie case, however, remains only so long as there is no substantial evidence to the contrary. When that is offered the presumption disappears, and unless met by further proof there is, nothing to justify a finding based solely upon it.” (Potts v. Pardee, 220 N. Y. 431, 433; Rose v. Balfe, 223 id. 481, 486.) The question is whether there is “ substantial evidence to the contrary ” in this . case.
The theory that a father is liable as principal every time he permits a capable adult son to use for his personal convenience an automobile primarily kept by the father for family use, has not been adopted as the law of this State. (Van Blaricom v. Dodgson, 220 N. Y. 111.) If liability is to be predicated against such an owner in that way, simply upon the basis of the general
If the testimony of the defendants in this case is to be credited, the car of the defendant Edward S. Wilson was not being driven in his service at the time, under the above authorities, and he is not liable to the plaintiff for her injuries.
Generally the credibility of a witness who is a party to the action and, therefore, interested in the result, is for the jury, and there have been automobile cases, involving the conclusiveness of the testimony of defendants as against the presumption of liability attaching to ownership, in which the courts have held that the credibility of their testimony was a question for the jury. (Ferris v. Sterling, 214 N. Y. 249; Bogorad v. Dix, 176 App. Div. 774; Cunningham v. Castle, 127 id. 580.)
The rule that the testimony of an interested witness and his credibility present a question of fact for the jury is not, however, a rule of universal application. There is a rule that when a party calls a witness he presents him to the jury as worthy of belief, as one whose testimony is to be relied upon so far as it is not contradicted. (Becker v. Koch, 104 N. Y. 394; Rey v. Equitable Life Assurance Society, 16 App. Div. 194.) This latter rule has been applied in a number of cases where the owner of thé car, or the driver of the car, or both, have been -called as witnesses for the plaintiff, thus vouching for the credibility of their testimony, in
There is another exception, however, to the rule that the credibility of the testimony of an interested witness is one of fact for the jury. It is the settled law of this State that where “ the evidence of a party to the action is not contradicted by direct evidence, nor by any legitimate inferences from the evidence, and it is not opposed to the probabilities; nor, in its nature, surprising, or suspicious, there is no reason for denying to it conclusiveness.” (Hull v. Littauer, 162 N. Y. 569, 572; Second National Bank v. Weston, 172 id. 250; Molloy v. Whitehall Portland Cement Co., 116 App. Div. 839; Kelly v. Burroughs, 102 N. Y. 93; Lomer v. Meeker, 25 id. 361; Perlmutter v. Byrne, 193 App. Div. 769; Maher v. Benedict, 123 id. 579.)
The cases of Perlmutter v. Byrne (supra) and Maher v. Benedict (supra) are directly in point. In the former case the chauffeur, having left his employer at a theatre, was using the car to go to his own home to inform his wife that he would be out late in the evening and the accident happened while he was engaged on this errand. It was contended that the facts in the case sworn to on behalf of the defendant were all of them sworn to by interested witnesses and that there was a question of fact for the jury. The court said: “ A presumption originally attaches that a servant or chauffeur with the defendant’s car is upon the master’s business. Whatever may be the force of that presumption, in this case there is no contradiction either by the evidence of any witness or the circumstances surrounding the case of the defendant’s evidence to the effect that there was no business of the defendant which was being transacted by the chauffeur. Under such circumstances I understand that it may be ruled as matter of law. In Kelly v. Burroughs (102 N. Y. 93) it is held that a claim supported by the testimony of a party alone was not necessarily for the jury if there be no discrediting circumstances.” The same rule was applied in Maher v. Benedict (supra).
The respondent makes much of an incident in relation to the ■licensing of this car, it appearing that the son had made out the application blank in which he had assumed to be personally the owner of the car when he knew that it was owned by his father. This he explains by saying that he had indicated the truth to the agent through whom he made application for a license and had been informed that it was proper for him to assume to make the application himself since it was the car that was being licensed and not the owner. Assuming that this may have had some bearing upon the credibility of the testimony of the son, I fail to see how it has any bearing upon the credibility of the testimony of the father, who admitted that he was the owner of the car and who did not seek to evade liability by claiming the contrary. Assuming that this evidence together with the other testimony in the case tended to show a general authority conferred upon the son to run the car, it did not show that the car was being used in the service of the owner at the time in question in the face of substantial evidence to the contrary any more than if the son had been a chauffeur employed by the owner as in the case of Reilly v. Connable (214 N. Y. 586) and other similar cases above cited.
Under the circumstances of this case it must be ruled as a matter of law that the presumption has been overcome by Substantial testimony and there being no further proof to justify a finding that the car was being operated for the benefit of the appellant Edward S. Wilson, there should be a reversal of the judgment and order herein so far as that defendant is concerned. The motion to dismiss the complaint, made at the close of the entire case should have been granted.
As to the defendant Edward S. Wilson the judgment and order should be reversed on the law and as to him the complaint should be dismissed, with costs.
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H. T. Kellogg, Acting P. J., Kiley, Van Kirk and Hasbrouck, JJ., concur.
Judgment and order, reversed on the law as to the defendant Edward S. Wilson and as to him the complaint is dismissed, with costs.