Cohen v. Neustadter
| Decision Date | 10 January 1928 |
| Citation | 160 N.E. 12,247 N.Y. 207 |
| Parties | COHEN v. NEUSTADTER (two cases). |
| Court | New York Court of Appeals Court of Appeals |
Actions by Fanny Cohen and by Samuel Cohen against Pesach Neustadter. From judgments of the Appellate Division, First Judicial Department (221 App. Div. 102, 222 N. Y. S. 602), affirming judgments of the Trial Term, entered on a verdict of jury in favor of defendant, plaintiffs appeal.
Judgment in each case reversed, and new trial granted.
Appeal from Supreme Court, Appellate Division, First department.
William A. Schacht, of New York City, for appellants.
James A. Nooney and Joseph Force Crater, both of New York City, for respondent.
These are two actions in negligence which were tried as one. The first action was brought to recover damages for personal injuries sustained by the plaintiff Fanny Cohen. The second action was brought by her husband, Samuel Cohen, to recover damages for the loss of the services of Fanny Cohen, occasioned by her injuries. The two Cohens were spending their vacation in the Catskills at a boarding house near Mountaindale. The defendant, an acquaintance of theirs, was spending his vacation in the nearby village of Fallsburg. One day the three met at a country store in Mountaindale. According to the story told by the Cohens, the defendant asked them to drive with him in his automobile to Fallsburg. Fanny Cohen said that she would like first to change her dress. Thereupon the defendant directed his daughter, Pearl Neustadter, to drive the Cohens in his automobile to their boarding house in order that Fanny Cohen might effect a change of clothes. According to the Neustadters, the Cohens asked the defendant to drive them in his automobile to Fallsburg. When the defendant had given his assent, Fanny Cohen remarked that she must return to her boarding house for the purpose already stated. Thereupon the defendant's daughter, Pearl, in the presence of the defendant, invited Fanny Cohen to drive to the boarding house. No direction was given by the defendant to his daughter to make the drive. Concededly, the drive was taken. Concededly, the automobile, on its way back from the boarding house, was overturned at the foot of a steep hill while Pearl Neustadter was attempting to guide it around a turn into a crossroad. Concededly, the plaintiff Fanny Cohen was more or less seriously injured by the capsizing of the car. Abundant proof was given to justify the conclusion that the car was negligently driven by Pearl Neustadter. Nevertheless, the jury, by its verdicts, acquitted the defendant from liability. It had been instructed by the trial court that in order to find verdicts for the plaintiffs it must first find that the defendant had directed his daughter to drive the Cohens to the boarding house and return. The court had also ruled that it was not sufficient if the daughter made the trip with the express or implied consent of the defendant. In view of the instructions given, and the compelling nature of the proof as to negligence, it is highly probable that the verdicts resulting were based upon a determination that, while the automobile was driven with the assent of the defendant owner, it was not driven by his direction.
[1][2] The accident occurred on July 15th, 1924. At this time section 282-e of the Highway Law (Consol. Laws, c. 25), which was added by chapter 534 of the Laws of 1924, had become effective. The section, in part, provides as follows:
‘Every owner of a motor vehicle operated upon a public highway shall be liable and responsible for death or injuries to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person, legally using or operating the same with the permission, express or implied, or such owner.'
It has been said:
‘As Blackstone tersely expressed it, in the interpretation of statutes due regard must be had to the old law, the mischief, and the remedy.’ Woollcott v. Shubert, 217 N. Y. 212, 221,111 N. E. 829, 831 (L. R. A. 1916E, 248, Ann. Cas. 1916B, 726).
The old law exempted the owner of a loaned motor vehicle from liability for personal injury or property damage resulting from the negligent driving of the vehicle by the borrower upon...
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