Orlando v. Pioneer Barber Towel Supply Co.

• Decision Date: 21 January 1925
• Parties: ORLANDO v. PIONEER BARBER TOWEL SUPPLY CO.
• Court: New York Court of Appeals Court of Appeals

239 N.Y. 342

146 N.E. 621

ORLANDO

v.PIONEER BARBER TOWEL SUPPLY CO.

Court of Appeals of New York.

Jan. 21, 1925.

Action by Matteo Orlando against the Pioneer Barber Towel Supply Company. From a judgment of the Appellate Division, First Department (210 App. Div. 219, 205 N. Y. S. 534), reversing on law and facts a judgment of Trial Term entered on a verdict of jury in favor of plaintiff, and dismissing complaint, plaintiff appeals.

Judgment reversed, so far as it dismisses complaint, and new trial granted.

Appeal from Supreme Court, Appellate Division, First department.

Abraham M. Fisch, of New York City, for appellant.

Martin B. Faris, Francis R. Holmes and Julian S. Eaton, all of New York City, for respondent.

POUND, J.

[1][2][3] This is a negligence action growing out of injuries sustained by plaintiff when, on the evening of May 4, 1921, he was struck by defendant's auto car truck while it was being taken from defendant's laundry to the garage where it was to be left for the night. In the trial court the case was sent to the jury and plaintiff obtained a verdict. The Appellate Division reversed upon questions of law and fact, and dismissed the complaint. Plaintiff rested on the presumption of control growing out of ownership of the car. The presumption continues until there is substantial evidence to the contrary. Rose v. Balfe, 223 N. Y. 481, 119 N. E. 842, Ann. Cas. 1918D, 238. The question is whether as matter of law the presumption was overcome. The car was driven at the time of the accident by Thomas Foster, a brother of Harry Foster, who was admittedly defendant's chauffeur in charge of the car. Harry Foster testified that at the date of the accident he had driven the truck, brought it back to the defendant's laundry, left it there, and gone home; that he was not driving the car at the time of the accident. Mr. Evans, manager of the defendant and in charge of the chauffeurs, testified that he employed Harry Foster to drive the car, and gave authority to no one else to run the truck on the day of the accident. Thomas Foster testified that he came home from his work in Kennedy's shipyards, and then, at his brother's request, went around to the laundry and drove the truck to the garage; that the accident occurred while he was driving the car; that he was not working for defendant at the time. On this evidence on the question of control the Appellate Division held as matter of law that the act of the driver imposed no legal liability on defendant. But Evans, the manager, did not testify that Thomas Foster was not employed by defendant as a chauffeur at the time of the accident. Thomas said on cross-examination that he had previously been employed by defendant, but could not remember when he had left its employment. This somewhat evasive denial that he was employed by the defendant at the time of the accident, coupled with the fact that he had made a statement in writing to an investigator from the office of plaintiff's attorney to the effect that he was chauffeur for the defendant when he was taking the car to the garage, tended to impeach his credibility. The car was not taken for a joy ride. It was being used strictly in the defendant's business. Thomas was at the worst doing what Harry should have done. If Thomas was at the time in fact one of defendant's chauffeurs, it cannot be said as matter of law that defendant was not liable for his negligence merely because Harry was the...