St. Andrassy v. Mooney

• Citation: 186 N.E. 867,262 N.Y. 368
• Parties: ST. ANDRASSY et al. v. MOONEY et al.
• Decision Date: 11 July 1933
• Court: New York Court of Appeals

262 N.Y. 368

186 N.E. 867

ST. ANDRASSY et al.

v.MOONEY et al.

Court of Appeals of New York.

July 11, 1933.

Action by Bertha St. Andrassy and Arthur St. Andrassy against James D. Mooney and another. From a judgment of the Appellate Division, Second Department (237 App. Div. 859, 261 N. Y. S. 935), affirming a judgment of the Trial Term entered upon the verdict of a jury in favor of plaintiffs, the named defendant appeals.

Judgments reversed, and complaint dismissed.

Appeal from Supreme Court, Appellate Division, Second Department.

James A. Nooney and Ralph O. L. Fay, both of New York City, for appellant.

L. H. Schleider and J. M. Cohen, both of New York City, for respondent.

LEHMAN, Judge.

The plaintiffs have recovered judgments for injuries suffered in a collision between a taxicab in which they were riding and an automobile owned by the defendant Mooney and driven by a chauffeur in his employ. The defendant Mooney does not on this appeal question that the evidence is sufficient to sustain a finding that the collision occurred through the negligence of his chauffeur, but urges that the chauffeur was driving the automobile without his employer's authority or permission.

Proof of ownership is sufficient to establish prima facie that a custodian operating the car is engaged in the owner's service. Ferris v. Sterling, 214 N. Y. 249, 108 N. E. 406, Ann. Cas. 1916D, 1161. From such proof ‘a presumption arises that it was in use for his benefit, and on his own account.’ Norris v. Kohler, 41 N. Y. 42, 44. ‘The presumption * * * however, remains only so long as there is no substantial evidence to the contrary.’ Petts v. Pardee, 220 N. Y. 431, 433,116 N. E. 78, 79, 8 A. L. R. 785. Here the evidence shows conclusively that the accident occurred in the evening when the chauffeur was using the car to take his own friends for a drive. He was using the car for his own purposes. Under these circumstances, any inference that the car was in the use of the owner, for his benefit, and on his account is excluded. Responsibility on the part of the defendant for the operation of his automobile here is, however, predicated, not on the ground of agency but upon the statutory liability of an owner of a motor vehicle for damages resulting from the negligent operation of his automobile by ‘any person * * * operating the same with the permission, express or implied, of such owner.’ Vehicle and Traffic Law; (Consol. Laws, c. 71) § 59.

We have held that, since the enactment of the statute imposing this new liability upon the owner of a motor vehicle, the owner is presumptively responsible for the manner in which it is driven even though it appear that the vehicle was not being used in his service or for his business, for the inference of permission is not excluded. None the less, the presumption of such responsibility also disappears where upon all the evidence it appears that no permission was given. Chaika v. Vandenberg, 252 N. Y. 101, 169 N. E. 103. Cf. Fluegel v. Coudert, 244 N. Y. 393, 155 N. E. 683. The burden of proof is always on the plaintiffs. They have met that burden in the first instance by the presumption arising from proof of ownership. The operation of a motor vehicle without the consent of the owner is unlawful, and, in the absence of explanation, a logical inference of lawful operation with the owner's consent may be drawn from the possession of the operator. The defendant destroys the inference and the presumption resting thereon when he shows the true facts. If the evidence produced to show that no permission has been given has been contradicted or, because of improbability,...