Moore v. Rosenmond

• Decision Date: 03 June 1924
• Citation: 238 N.Y. 356,144 N.E. 639
• Parties: MOORE v. ROSENMOND.
• Court: New York Court of Appeals Court of Appeals

238 N.Y. 356

144 N.E. 639

MOORE

v.ROSENMOND.

Court of Appeals of New York.

June 3, 1924.

Action by James Moore against Mayer L. Rosenmond. From a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (207 App. Div. 839,201 N. Y. Supp. 926), affirming a judgment in favor of plaintiff, entered upon a verdict, defendant appeals.

Reversed.

Appeal from Supreme Court, Appellate Division, First Department.

Barnett Cohen, William J. Ahearn, and Frank J. O'Neill, all of New York City, for appellant.

Julian J. Raphael and Samuel R. Robinson, both of New York City, for respondent.

POUND, J.

Plaintiff was struck by defendant's automobile at the intersection of Amsterdam avenue and Sixty-Second street, borough of Manhattan. It was being driven negligently. The controversy is whether, at the time of the accident, the car was in use for defendant's benefit and on his account, or whether the defendant's chauffeur had taken it on an expedition or frolic or, in the vulgar, a joy ride, for his own pleasure or purpose. The plaintiff rested his principal case mainly on the presumption of control arising from defendant's ownership of the automobile. Ferris v. Sterling, 214 N. Y. 249, 253,108 N. E. 406, Ann. Cas. 1916D, 1161. The appellant contends that this presumption was destroyed as matter of law by sufficient evidence.

[1] The evidence for defendant in brief compass is as follows: Rosenmond, the defendant, lived at the corner of Eightieth street and West End avenue. He had a Cunningham car which he kept in a nearby garage. He had a chauffeur named Dollar. On June 23, 1921. Dollar took him to his office in Forty-Ninth street in the morning. Defendant then told Dollar to go to Yonkers and Mt. Vernon for Mrs. Rosenmond's mother and bring her back to defendant's house, and at some time, not definitely fixed, take the car to Forty-Ninth street again, attend to some repairing of the windows, and be at the house at 2 o'clock in the afternoon to take out defendant's wife. Dollar went to Mt. Vernon but did not get the mother-in-law. On the return trip be picked up a friend, Corbin, at a garage at Eighty-Fifth street, about noon, had some drinks, drove up Amsterdam avenue to Ninety-First street, came down Amsterdam avenue to Fiftieth street, had more drinks, picked up another friend, and went to Forty-Ninth street and Tenth avenue, where they had more drinks, but no work was done on the car. They then started for defendant's garage, went back to Fifty-Third street, where they had some parting drinks with the second friend. Up to this point Dollar had driven the car, but he and Corbin both testify that at this point Corbin took the wheel and that Dollar sat in the back seat. The evidence that Dollar was on the back seat is, however, contradicted by plaintiff's witnesses. As they were going up town towards defendant's garage, the accident occurred at about 2:30 o'clock. Dollar was not then too intoxicated to have an argument about taking the plaintiff to the hospital in the car.

This evidence was not sufficient in law to destroy the presumption of control, although it might have been in fact. The jury might have found that Dollar had started down to Forty-Ninth street on defendant's business, got drunk, got to Forty-Ninth street, but neglected to business, and started back to defendant's garage without having the windows fixed. Although Dollar was serving defendant badly, defendant was liable. Bloodgood v. Whitney, 235 N. Y. 110, 114, 139 N. E. 209. They might, on the other hand, if they drew from the testimony the inferences most favorable to defendant, have found that Dollar had abandoned his employer's business when he picked up Corbin at Eighty-Fifth street garage, and that the time was then devoted to a personal spree, until a belated sense of duty inspired them to start back to the garage. It was, however, for the jury to draw the inferences. Obviously the purpose of defendant was to have them draw the inference that at Fifty-Third street, on the return trip, Dollar had become helplessly drunk and had exercised no more control over the car, that Corbin had then started to take the car and Dollar back to the garage, and that Corbin alone was responsible for the accident. Benevento v. Poertner Motor Car Co., 235 N. Y. 125, 139 N. E. 213. With the conflict of evidence on this point, the jury no doubt believed the witnesses for plaintiff to the effect that Dollar sat on the front seat at the time of the accident and found for the plaintiff on the merits.

The court charged the jury without objection that the car was under the control of defendant's chauffeur at the time of the accident, and the jury was justified in so...