Fallon v. Swackhamer

• Decision Date: 03 June 1919
• Citation: 123 N.E. 737,226 N.Y. 444
• Parties: FALLON v. SWACKHAMER et al.
• Court: New York Court of Appeals Court of Appeals

226 N.Y. 444

123 N.E. 737

FALLON

v.SWACKHAMER et al.

Court of Appeals of New York.

June 3, 1919.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by May Fallon against Clinton G. Swackhamer, impleaded with another. Judgment for plaintiff entered upon verdict of a jury was affirmed by the Appellate Division by divided court (179 App. Div. 909,165 N. Y. Supp. 1085), and the named defendant appeals. Reversed, and new trial granted.

Hiscock, C. J., and Cardozo and Pound, JJ., dissenting.

Charles A. Dryer, of White Plains, for appellant.

Jerome A. Peck and Harry Greenberg, both of New York City, for respondent.

CRANE, J.

[1] The plaintiff has recovered a verdict against the defendants for injuries received in an automobile collision at the intersection of Fisher avenue and Orawaupum street in the city of White Plains, N. Y., on Sunday, the 7th day of July, 1912.The judgment has been affirmed by the Appellate Division of the Second Department, two justices dissenting. The defendant Clinton G. Swackhamer, who is which, at the time of the owner of the car which, at the time of the accident, was being driven by his brother-in-law, Oscar Haight, the other defendant. The only question presented is whether there is any evidence to sustain the finding that Haight was driving the automobile for and on behalf of the defendant Swackhamer, and while engaged in his business. In our opinion the evidence warrants no such conclusion.

On the day in question guests had come to Swackhamer's house in White Plains for dinner, which had been prepared by his wife and Mrs. Mary Haight, his mother-in-law. After dinner Mrs. Haight asked Swackhamer to take her home in his car, which at that time was standing in the street in front of the house. She lived some blocks away. Swackhamer replied that he could not do so as he was obliged to go at once to Rye Beach, and then proceeded upstairs to wash and dress himself. In his absence, Mrs. Haight turned to her son, the defendant, Oscar Haight, and asked him if he would drive her home. Haight worked for Swackhamer in the coal business in White Plains, and had at times run the defendant's car from the shed in the coalyard to the office, and at other times had taken the wheel while the defendant was giving him operating instructions. He was not the defendant's chauffeur, but an assistant yard foreman with no work or employment whatever in his occupation on Sundays. Haight was present at the Sunday gathering in his brother-in-law's house as a guest, and not as an employé engaged in the business of his employer.

Responding to this personal request of his mother, Haight proceeded to take her to the car in order to drive her home. He was asked by another guest, Henry B. Jones, where he was going, and if he, Jones, could go along too. Jones thereupon invited two young ladies, Miss Gerrard and Miss Murray, who were sitting upon the porch with him, and were also guests at the house, to take a ride. Haight left his mother at her house, and then, at the suggestion of Jones, ran down to Hartsdale through Greenacres, a distance of a mile and a half or more, and when returning collided with the car in which the plaintiff was riding at the intersection of the streets above mentioned. The defendant Swackhamer testified that he knew nothing about his car being taken by Haight until after the accident, that he did not authorize him to take these people out for a ride, and in this he is supported by Oscar Haight, and likewise by Mrs. Mary Haight, his mother-in-law.

Should we consider Swackhamer and these relatives interested witnesses, yet we have the testimony of Henry B. Jones, a passenger conductor on the New York Central Railroad, and of the young ladies, Violet Gerrard and Dorothy Murray, to corroborate them.

By positive, unshaken testimony from six witnesses, not in the least improbable,...