Potts v. Pardee

• Decision Date: 17 April 1917
• Citation: 220 N.Y. 431,116 N.E. 78
• Parties: POTTS v. PARDEE.
• Court: New York Court of Appeals Court of Appeals

220 N.Y. 431

116 N.E. 78

POTTS

v.PARDEE.

Court of Appeals of New York.

April 17, 1917.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Thomas Potts against Georgie Pardee. From a judgment of the Appellate Division (162 App. Div. 936,147 N. Y. Supp. 1136), affirming a judgment entered on a verdict for plaintiff, defendant appeals. Reversed, and new trial granted.

Chase and Crane, JJ., dissenting.Clarence P. Moser, of Rochester, for appellant.

Frederick Wiedman, of Rochester, for respondent.

McLAUGHLIN, J.

The plaintiff, on the 23d of June, 1910, while lawfully using one of the public streets of the city of Rochester, was struck by an automobile and very seriously injured. He brought this action to recover the damages sustained on the ground that the same were caused by the alleged negligence of the defendant. The answer, while admitting that the plaintiff was injured by an automobile at the time and place stated, put in issue the other material allegations of the complaint. At the trial the plaintiff had a verdict for a substantial amount, upon which judgment was entered, from which defendant appealed. The Appellate Division, by divided court, affirmed the judgment, and the present appeal is taken therefrom.

[1][2][3] The facts are not complicated, and the only question which I deem it necessary to consider is whether there was any evidence which justified a finding that the defendant was in any way responsible for the plaintiff's injuries. The defendant, her husband, son, and a chauffeur by the name of Fraser, shortly prior to the accident, started on a trip to visit friends, and in passing through the city of Rochester the accident occurred. The automobile was owned by the defendant, and this fact was prima facie evidence of her responsibility for the manner in which it was driven. Ferris v. Sterling, 214 N. Y. 249, 108 N. E. 406, Ann. Cas. 1916D, 1161;Kellogg v. Church Charity Foundation of L. I., 203 N. Y. 191, 96 N. E. 406, 38 L. R. A. (N. S.) 481, Ann. Cas. 1913A, 883. 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. Matter of Carroll v. Knickerbocker Ice Co., 218 N. Y. 435, 113 N. E. 507. Here the presumption arising from the fact of ownership was entirely destroyed by the other evidence. The plaintiff called as a witness Fraser, who was driving the car at the time the accident occurred, and thereby certified him to be credible. Maher v. Benedict, 123 App. Div. 579,108 N. Y. Supp. 228. Fraser testified that he was not in the employ of the defendant, but was at the time of the accident, and for nearly 20 years prior thereto had been, in the employ of defendant's husband; that he was hired by the husband, was paid by him, and received his orders from him, including those with reference to the trip which the then being taken. His testimony was not in any respect suspicious and was fully corroborated by the testimony of the defendant. The jury was not at liberty to disregard this testimony, and it established that Fraser at the time the accident occurred was the servant of defendant's husband.

[4] The husband died about two years after the accident, and prior to the trial. Fraser, at the time of the trial, was not in defendant's employ, though she had retained him for a few months after her husband's death. The plaintiff, evidently appreciating that it would be necessary to prove that the chauffeur was in the employ of the defendant when the accident occurred, induced her to sign a statement, falsely alleged to be desired by Fraser for the purpose of obtaining another position. In this statement was a question as to how long he had been employed by her. The answered it by stating the aggregate number of years he had been employed by herself and husband. This statement was offered in evidence at the trial as some proof that he was in fact employed by her when the accident occurred. When considered, however, with the other evidence in the case it did not tend to prove that fact or justify a finding to that effect. The alleged purpose for which the statement was obtained might fairly be said to relate to the employment by her husband and herself, and it is quite evident it was so understood by her. Indeed it is not an uncommon thing for a husband and wife to use the plural when speaking of their individual possessions used in common by both, e. g., ‘our residence,’ ‘our servants,’ ‘our automobile.’ Under the circumstances it was a natural thing for her not to have distinguished between the time the chauffeur was employed by her husband and her personally. In any view such statement did not justify submitting the case to the jury or it in finding that Fraser at the time the plaintiff was injured was her servant.

[5] It has been settled by numerous authorities in this state at least that when it appears in an action against the owner of an automobile for damages sustained that the driver was not in his employ nor engaged in his business, a plaintiff cannot recover. Van Blaricom v. Dodgson, 220 N. Y. 111, and cases cited, 115 N. E. 443;Reilly v. Connable, 214 N. Y. 586, 108 N. E. 853, L. R. A. 1916A, 954, Ann. Cas. 1916A, 656;Kellogg v. Church Charity Foundation of L. I., 203 N. Y. 191, 96 N. E. 406,36 L. R. A. (N. S.) 481, Ann. Cas....