179 A.D. 774 | N.Y. App. Div. | 1917
This action is brought to recover for damages sustained by the plaintiff on account of a collision between his wagon and an automobile truck owned by defendant and driven by one McBride, who was employed by the defendant. Upon this appeal no question is raised as to the negligent operation of the truck at the time of the collision. It appears that a certain
After the charge to the jury the court at the request of the defendant’s counsel further charged “ that if the car had been loaned to the society, the direction of Superintendent Kelly to take two men home, if he did give such direction, does not make the defendant liable for the acts of the chauffeur at the time of the accident.” The court also charged that it was a question for the jury whether “ holding the picnic of the society and going to and from thereto was not the business of the defendant.” Both charges were duly excepted to, the former by counsel for the plaintiff and the latter by counsel for the defendant. The jury, in finding for the plaintiff, accordingly must have found that this employees’ picnic and going to and from it was the business of the defendant. This finding is now challenged by the appellant as unsupported
The evidence of defendant’s superintendent, Kelly, was that this truck was “ loaned ” each year to the society; that each year they had the “ privilege ” of using a car. Certainly if at the time of the accident this car had been driven by one not an employee of the defendant and not subject to any orders of the defendant, the mere ownership of the car by the defendant would not make it liable. An owner’s liability for damages received from his car can be based only upon proof that the car was at the time being used in the owner’s business, or, to state the rule differently, that the one in charge of the car was at the time engaged in the business of the owner. (See Reilly v. Connable, 214 N. Y. 586; Bogorad v. Dix, 176 App. Div. 774.) If a car and chauffeur are temporarily engaged in a special occupation, such occupation may or may not be the owner’s and employer’s business. In determining this question of fact it is important to know whether the initiative of the special occupation is taken by the owner or by others. The expressions “ loan ” of a car and the extending of the “ privilege ” of using the car indicate that the initiative here came not from the defendant but from the society holding the outing. Therefore, if this chauffeur was privileged rather than ordered to take this car to the outing, which is all that the record discloses, there is no evidence whatever in the case upon which to base a finding that the business of the company was being carried on at such time.
The respondent claims that the defendant was so interested in the good health and spirits of its employees that this outing may be said to have been a part of its business. But such an argument would practically abrogate the existing law on this subject in this State. An owner who gratuitously loans his car to a servant or even to a member of his own family for such person’s own particular pleasure, presumably is interested in the pleasure and, inferentially, in the good health and spirits of such other person. And yet it cannot be doubted that such particular pleasure is not thereby made the employer’s business in any legitimate sense of the words.
Nor do we think that the direction of the superintendent, if given, to the chauffeur to take two members of the party to their homes in The Bronx, was any resumption of the use of the car in the business of the defendant. In this we agree with the trial court. The car had been loaned to the association, of which both Kelly and the chauffeur were members, in a matter outside of the business of the defendant. The taking of these passengers to The Bronx was a continuation of the purposes for which the car was loaned to the association, and it cannot be said that the order of Kelly changed that purpose and made the act of the chauffeur the act of the defendant as an act done in the business of the defendant.
It follows that the judgment and order should be reversed, with costs, and the complaint dismissed, with costs.
The finding that at the time of the accident the chauffeur was engaged in the business of the defendant is reversed.
Scott, Lahghlin and Davis, JJ., concurred; Page, J., dissented.
Judgment and order reversed, with costs, and complaint dismissed, with costs.