Der Ohannessian v. Elliott

• Decision Date: 02 May 1922
• Citation: 135 N.E. 518,233 N.Y. 326
• Parties: DER OHANNESSIAN v. ELLIOTT.
• Court: New York Court of Appeals Court of Appeals

233 N.Y. 326

135 N.E. 518

DER OHANNESSIAN

v.ELLIOTT.

Court of Appeals of New York.

May 2, 1922.

Action by Stephen Der Ohannessian against George A. Elliott. From a judgment of the Appellate Division, First Department (196 App. Div. 883,186 N. Y. Supp. 937), reversing a judgment of the Trial Term entered upon a verdict directed for defendant, defendant appeals.

Reversed, and judgment of the Trial Term affirmed.

Appeal from Supreme Court, Appellate Division, First department.

Joseph M. Williams, of New York City (Herbert C. Smyth, James B. Mackie, and Frederick W. Bisgood, all of New York City, of counsel), for appellant.

Shaine & Weinrib, of New York City (Edward C. Weinrib, of New York City, of counsel), for respondent.

CRANE, J.

On the 2d day of September, 1915, the defendant's car collided with a taxicab at the intersection of Eighth avenue and Forty-Fourth street in the borough of Manhattan, city of New York, inflicting injuries upon the plaintiff. The defendant's automobile was in charge of his chauffeur. This action has been brought to recover damages for negligence, and the evidence would justify the jury in believing that the chauffeur of the defendant's car was to blame for the accident.

The serious point to the case is the employment of the chauffeur at the time the accident occurred. He was in the defendant's car, but was he at the time in the defendant's employ? Was he working for the defendant or driving on an errand and purpose of his own? The Trial Term dismissed the complaint at the end of the entire case. The Appellate Division reversed the judgmentfor the defendant and granted a new trial on the ground that there was evidence of employment which should have been submitted to the jury.

The only evidence in behalf of the plaintiff showing the employment by the defendant of the chauffeur at the time of the accident is the presumption arising out of the ownership of the car. The defendant and his chauffeur both told the same story, which in substance is as follows:

George Elliott, the defendant, at the time in question was a lawyer of the state of Delaware, and had traveled in his Pierce-Arrow car from Wilmington, Del., to the White Mountains. On his way up, he stopped in New York at the Waldorf Astoria, and at the recommendation of that hotel had kept his car in the Greeley Square Garage on West Thirty-Seventh street, between Seventh avenue and Broadway. On the day of the accident the defendant had returned to New York city and again put up at the Waldorf Astoria, engaging space for his car in the same garage.

In the afternoon of the 2d day of September he and his wife and chauffeur went to Cedarhurst, Long Island, returning to the hotel about 7:30 in the evening. He then told his chauffeur, a man named Leo Dimond, to take the car to the garage, as he would not need it again until the next morning. Dimond stopped at the garage, but did not leave the car there. He went with the car to get his supper at a restaurant on Eighth avenue, near Thirty-Fifth street. After this, and about 10 o'clock that night, he started uptown through Eighth avenue, and collided with the plaintiff's taxicab at the corner of Forty-Fourth street.

[1] It is a fact which cannot be contradicted because it is part of the plaintiff's...