214 N.Y. 249, Ferris v. Sterling

Citation214 N.Y. 249
Party NameJOSEPH S. FERRIS, as Administrator of the Estate of ELMER H. FERRIS, Deceased, Respondent, v. SARAH E. STERLING, as Executrix of FREDERICK O. STERLING, Deceased, Appellant.
Case DateFebruary 25, 1915
CourtNew York Court of Appeals

Page 249

214 N.Y. 249

JOSEPH S. FERRIS, as Administrator of the Estate of ELMER H. FERRIS, Deceased, Respondent,

v.

SARAH E. STERLING, as Executrix of FREDERICK O. STERLING, Deceased, Appellant.

New York Court of Appeal

February 25, 1915

Argued January 18, 1915.

COUNSEL

Page 250

Oliver D. Burden for appellant. Even though the jury found, upon incompetent evidence, and by reason of the improper exclusion of rebuttal evidence, that Frederick O. Sterling was the owner of the automobile which caused the accident, nevertheless, defendant cannot be held on the evidence in the record. ( Pichler v. Reese, 171 N.Y. 577; Chicago v. Schmidz, 211 Ill. 446; Avery v. Clements, 18 Conn. 309; Amick v. Young, 69 Ill. 544; De Wolf v. Williams, 69 N.Y. 621; People v. Smith 162 N.Y. 520; Rowley v. Brown, 71 N.Y. 85; Eyre v. Higbee, 35 Barb. 500; Fish v. Skut, 21 Barb. 333.) The question in this case is whether in any event, even though it be said that Frederick O. Sterling technically owned the car, he is liable. The liability of an owner of a motor car for the negligence of one driving it in his absence depends upon whether the relation of master and servant existed at the time. It must be shown that at the time of the injury the driver was within the control of the owner or executing his orders or doing his work. ( Maher v. Benedict, 123 A.D. 579; Long v. Richmond, 68 A.D. 446; 175 N.Y. 595; Stewart v. Baruch, 103 A.D. 577; Clark v. Buckmobile Co., 107 A.D. 129; Jones v. Weigand, 134 A.D. 644; Cunningham v. Castle, 127 A.D. 580; Freibaum v. Brady, 143 A.D. 220; Kellogg v. C. C. Foundation, 203 N.Y. 191; Cullen v. Thomas, 150 A.D. 475.) The exclusion of testimony offered with reference to ownership was error. ( McMahon v. Davidson, 12 Minn. 357; Chicago v. Schmidz, 211 Ill. 446; Avery v. Clements, 18 Conn. 309; Amick v. Young, 69 Ill. 544; Bunke v. N.Y. Telephone Co., 188 N.Y. 600; 110 A.D. 241; De Wolf v. Williams, 69 N.Y. 621; Rowley v. Brown, 71 N.Y. 85; People v. Smith, 162 N.Y. 520.)

Frank J. O'Neill for respondent. The proof in this case that the ownership of the automobile which caused the injury was in Frederick O. Sterling was ample to

Page 251

require the trial judge to deny the motion for a nonsuit and submit the question to the jury. ( McCann v. Davison, 145 A.D. 522; McGowan v. Morgan, 160 A.D. 588; Elwood v. Western Union Tel. Co., 45 N.Y. 549; Kavanagh v. Wilson, 70 N.Y. 177; Gildersleeve v. Landon, 73 N.Y. 609; Wohlfahrt v. Beckert, 92 N.Y. 489; Sipple v. State of New York, 99 N.Y. 284; Munoz v. Wilson, 111 N.Y. 295; C. N. Bank v. Diefendorf, 123 N.Y. 191; Gavin v. Gavin, 140 N.Y. 662; Eastland v. Clarke, 165 N.Y. 420.)The evidence in this case was sufficient to require the court to submit to the jury the question whether this automobile was being operated at the time of the accident by a servant of Frederick O. Sterling and in his business. ( McCann v. Davison, 145 A.D. 522; Stewart v. Baruch, 103 A.D. 577; Curley v. El. V. Co., 68 A.D. 18; Norris v. Kohler, 41 N.Y. 42.) The trial court committed no error in excluding the testimony offered by the defendant tending to show declarations of the defendant touching the ownership of this car. ( Penfield v. Carpenter, 13 Johns. 350; Weeks v. Lowere, 8 Barb. 530; Erben v. Lorillard, 19 N.Y. 229; Enoch Morgan's Sons Co. v. Smith, 132 N.Y. 591; Stickney v. Billings, 30 Hun, 304; Arker v. Cohen, 136 A.D. 871; Hohn v. Shay, 140 A.D. 176.)

CARDOZO, J.

The action is brought to recover damages for injuries resulting in death. The defendant's son, while in charge of an automobile, ran down a motorcycle, and killed the man who was on it. Both father and son assert that the car was the son's. Both assert also that the son at the time of the collision was using the car for his own pleasure, and not in the father's service. They say that the car was given to the son on his twenty-first birthday, July 8, 1912. They are corroborated to some extent by the manager of the company that sold it. The license, issued by the secretary of state, was made out,

Page 252

however, in the father's name. The fire insurance policy and the accident insurance policies were issued in the same form. Both father and son claim that the form of the license and of the policies was due to a mistake. Much of the evidence offered by them to prove this mistake, was, however, excluded. To this we shall refer later. The inference of control by the defendant was helped out by the nature of his business. He was a livery stable keeper, but for some years he had been ill, and because of illness he had left the management of his business in large measure to his son. He concedes this, but asserts that the business did not include the running of this car. He maintains, also, that at the moment of the collision the son was using the car for pleasure only. They had gone together to see a physician. When this errand was over, the father...

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199 practice notes
  • 57 N.W.2d 200 (Iowa 1953), 48074, Sexton v. Lauman
    • United States
    • Iowa Supreme Court of Iowa
    • March 10, 1953
    ...207 Iowa 567, 221 N.W. 514; Farrelly v. Heuacker, 118 Fla. 340, 159 So. 24; Ford v. Hankins, 209 Ala. 202, 96 So. 349; Ferris v. Sterling, 214 N.Y. 249, 108 N.E. 406; Blashfield Cyclopedia of Automobile Law, Vol. 9, Part 2, Sec. 6272; Berry on Automobiles, Sixth Edition, Vol. 2, Sec. 1343. ......
  • 291 P. 1060 (Idaho 1930), 5573, Stanger v. Hunter
    • United States
    • Idaho Supreme Court of Idaho
    • September 25, 1930
    ...in the complaint charging negligence against such defendant in the act or acts complained of. (See particularly, Ferris v. Sterling, 214 N.Y. 249, Ann. Cas. 1916D, 1161, 108 N.E. 406; Mann v. Stewart Sand Co., 211 Mo.App. 256, 243 S.W. 406; Baker v. Maseeh, 20 Ariz. 201, 179 P. 53; Knust v.......
  • 241 S.W. 979 (Mo.App. 1922), Rockwell v. Standard Stamping Company, a Corp.
    • United States
    • Missouri Court of Appeals of Missouri
    • May 2, 1922
    ...may be met and overcome by evidence. Bogorad v. Dix, 176 A.D. 774, 162 N.Y.S. 992; McCann v. Davison, 130 N.Y.S. 473 Ferris v. Sterling, 214 N.Y. 249; Patterson v. Milligan, 12 Ala.App. 324. (4) Evidence that defendant's truck was being operated at the rate of twenty to twenty-five miles pe......
  • 170 N.W. 663 (N.D. 1918), 1915, Vannett v. Cole
    • United States
    • North Dakota Supreme Court of North Dakota
    • December 11, 1918
    ...v. Maxwell, 152 Mo.App. 415, 133 S.W. 351; Kayser v. Van Nest, 125 Minn. 277, 51 L.R.A.(N.S.) 970, 146 N.W. 1091; Ferris v. Sterling, 214 N.Y. 249, 108 N.E. 406, Ann. Cas. 1916D, 1161; Campbell v. Arnold, 219 Mass. 160, 106 N.E. 599; Guignon v. Campbell, 80 Wash. 543, 141 P. 1031; Page 665 ......
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199 cases
  • 57 N.W.2d 200 (Iowa 1953), 48074, Sexton v. Lauman
    • United States
    • Iowa Supreme Court of Iowa
    • March 10, 1953
    ...207 Iowa 567, 221 N.W. 514; Farrelly v. Heuacker, 118 Fla. 340, 159 So. 24; Ford v. Hankins, 209 Ala. 202, 96 So. 349; Ferris v. Sterling, 214 N.Y. 249, 108 N.E. 406; Blashfield Cyclopedia of Automobile Law, Vol. 9, Part 2, Sec. 6272; Berry on Automobiles, Sixth Edition, Vol. 2, Sec. 1343. ......
  • 291 P. 1060 (Idaho 1930), 5573, Stanger v. Hunter
    • United States
    • Idaho Supreme Court of Idaho
    • September 25, 1930
    ...in the complaint charging negligence against such defendant in the act or acts complained of. (See particularly, Ferris v. Sterling, 214 N.Y. 249, Ann. Cas. 1916D, 1161, 108 N.E. 406; Mann v. Stewart Sand Co., 211 Mo.App. 256, 243 S.W. 406; Baker v. Maseeh, 20 Ariz. 201, 179 P. 53; Knust v.......
  • 241 S.W. 979 (Mo.App. 1922), Rockwell v. Standard Stamping Company, a Corp.
    • United States
    • Missouri Court of Appeals of Missouri
    • May 2, 1922
    ...may be met and overcome by evidence. Bogorad v. Dix, 176 A.D. 774, 162 N.Y.S. 992; McCann v. Davison, 130 N.Y.S. 473 Ferris v. Sterling, 214 N.Y. 249; Patterson v. Milligan, 12 Ala.App. 324. (4) Evidence that defendant's truck was being operated at the rate of twenty to twenty-five miles pe......
  • 170 N.W. 663 (N.D. 1918), 1915, Vannett v. Cole
    • United States
    • North Dakota Supreme Court of North Dakota
    • December 11, 1918
    ...v. Maxwell, 152 Mo.App. 415, 133 S.W. 351; Kayser v. Van Nest, 125 Minn. 277, 51 L.R.A.(N.S.) 970, 146 N.W. 1091; Ferris v. Sterling, 214 N.Y. 249, 108 N.E. 406, Ann. Cas. 1916D, 1161; Campbell v. Arnold, 219 Mass. 160, 106 N.E. 599; Guignon v. Campbell, 80 Wash. 543, 141 P. 1031; Page 665 ......
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