Jackson v. Brown & Kleinhenz, Inc.
| Decision Date | 16 March 1937 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | JACKSON v. BROWN & KLEINHENZ, Inc., et al. |
OPINION TEXT STARTS HERE
Action for wrongful death by Winifred D. Jackson, as administratrix of the estate of James L. Jackson, deceased, against Brown & Kleinhenz, Inc., the Forbes Motor Agency, Inc., and Juan Lord. From a judgment of the Appellate Division (246 App.Div. 445, 284 N.Y.S. 44), reversing a judgment of the Trial Term for plaintiff on the law, plaintiff appeals.
Judgment of the Appellate Division reversed and judgment of the Trial Term affirmed.
CRANE, C. J., and LEHMAN and O'BRIEN, JJ., dissenting. Appeal from Supreme Court, Appellate Division, Fourth department.
William J. Flynn and Harold J. Tillou, both of Buffalo, for appellant.
Frank Gibbons and James F. Kelly, both of Buffalo, for respondent.
Plaintiff's intestate was struck and killed by an automobile driven by the defendant Juan Lord. The automobile was owned by the respondent Forbes Motor Agency, Inc., of Olean, N. Y. Several months before the accident it was taken by the defendant Brown & Kleinhenz, Inc., of Nunda, N. Y., several miles distant from Olean, for the purpose of effecting a sale. The sale was not made, but it remained in the possession of Brown & Kleinhenz, Inc. There was testimony from which the jury might have found that Brown & Kleinhenz, Inc., had purchased it, that being the contention of respondent, but the finding of the jury that title remained in respondent is supported by evidence and is not in question on this appeal. The questions here involved are whether the defendant Juan Lord at the time of the accident was driving the car with the consent, express or implied, of the defendant Brown & Kleinhenz, Inc., and, if so, whether the defendant Brown & Kleinhenz, Inc., had such right to use the car; that from the consent given by Brown & Kleinhenz, Inc., to Lord the jury might properly find an implied consent on the part of respondent.
The jury so found and the judgment entered upon such finding has been reversed by the Appellate Division upon the ground that the permission given by Brown & Kleinhenz, Inc., was limited to use of the car for a specific purpose, which permission was violated by Lord and upon the further ground that Brown & Kleinhenz, Inc., was not the agent of respondent and that consent of the respondent as owner to the use of the car by Lord could not be implied from the facts proven.
We believe the Appellate Division has erred by adopting a view too narrow in the circumstances of the case and that a question of fact was presented upon both issues as to which the finding of the jury should not have been disturbed as a matter of law.
That the consent given to Lord by Brown & Kleinhenz, Inc., was of a general nature, not restricted to use of the car to go to ‘the show,’ is fairly supported by the evidence. Before the trial, Kleinhenz made a statement to the effect that Lord, on requesting permission to use the car on the night in question, ‘didn't say where he was going,’ also that
On the trial both the making of the statement and its truth were admitted by Kleinhenz although on the trial he claimed Brown, his associate, gave the permission and Lord testified he asked to take a car to go ‘to the show with’ but did not specify where. It appears that he had been given permission to use a car on previous occasions when he took it at night and brought...
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