Arcara v. Moresse

• Decision Date: 05 January 1932
• Citation: 179 N.E. 389,258 N.Y. 211
• Parties: ARCARA v. MORESSE et al. (three cases).
• Court: New York Court of Appeals Court of Appeals

258 N.Y. 211

179 N.E. 389

ARCARA

v.MORESSE et al. (three cases).

Court of Appeals of New York.

Jan. 5, 1932.

Actions by Philip Arcara, by Antoinette Arcara, and by Josephine Arcara, against Mario Moresse and another. From judgments of the Appellate Division (233 App. Div. 799, 250 N. Y. S. 946), affirming judgments entered upon a verdict directed by the court in favor of plaintiffs, defendants appeal.

Judgment in each action affirmed.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Frank Gibbons, of Buffalo, for appellants.

Ford White, of Buffalo, for respondents.

KELLOGG, J.

The plaintiffs in these actions were occupants of a car with which an automobile owned by the defendant came into collision. There was evidence that the collision was occasioned by the negligence of the driver of the defendant's car. The resulting damage to each plaintiff was stipulated, and motions for a directed verdict were made by counsel for the opposing parties. Thereupon the court directed verdicts in favor of the plaintiffs against the defendant owner for the amounts stipulated.

It is conceded that, prior to the collision, the defendant owner had loaned his car to Maggio, his nephew, for his personal use; that Maggio was in the car when the collision occurred; that the car was then being driven by Barone, the friend of Maggio, with the latter's permission; that Barone was negligent; that Maggio, except as the acts and omissions of Barone were his, was not guilty of negligence. It was shown that, although the defendant owner had permitted Maggio to make use of the car for his own personal ends, his assent to such use was accompanied by instructions that Maggio must not let Barone, or any person other than himself, drive or operate the vehicle.

The question to be determined is whether or not the recoveries were authorized by the provisions of section 282-e of the Highway Law (now section 59 of the Vehicle and Traffic Law, Consol. Laws, c. 71) which impose liability upon the owner of every motor vehicle for death or personal injuries ‘resulting from negligence in the operation of such motor vehicle * * * by any person legally using or operating the same with the permission, express or implied, of such owner.'

We think that Maggio was at the time ‘using’ the car, though Barone was driving, for Maggio ‘did not abandon the car or its use when he surrendered to another the guidance of the wheel’; he was ‘still the director of the enterprise, still the custodian of the instrumentality confided to his keeping, still the master of the ship.’ Per Cardozo, C. J., in Grant v. Knepper, 245 N. Y. 158, 165, 156 N. E. 650, 652, 54 A. L. R. 845. We think, also, that Maggio was at the time using the car with ‘the permission’ of the defendant owner. True it is that, if the collision had occurred in a territory where use had been expressly proscribed by the owner, Maggio would then have been using the car without permission. Chaika v. Vandenberg, 252 N. Y. 101, 169 N. E. 103. Nor would it have been a permitted use if Maggio, against the express instructions of the owner, had employed the car to provide a pleasure trip for Barone. Psota v. Long Island R. Co., 246 N. Y. 388, 159 N. E. 180, 62 A. L. R. 1163. An owner in loaning his car may reasonably restrict the uses to which it may be put; consequently its employment for a proscribed purpose cannot be a permitted use On the other hand, if the limiting instructions relate to the manner of operation, such as the speeding or careless pilotage of the car, though the instructions be disobeyed, nevertheless the use is with ‘permission’ of the owner. Maggio was not instructed that Barone should not be accepted as a guest; he was merely told that Barone must not drive. The thing forbidden related to the operation of the car, not to the use which might be made of it. We conclude that Maggio was ‘using’ the car with the ‘permission’ of the owner.

The statement has been made that throughout the Highway Law (Consol. Laws, c. 25) the word ‘operate’ is used as signifying a personal act in working the mechanism of a motor vehicle. ‘The driver operates the car for the owner, but the owner does not operate the car unless he drives it himself.’ Per Pound, J., in Witherstine v. Employers' Liability Assur. Corp., Limited, of London, England, 235 N. Y. 168, 172.139 N. E. 229, 230, 28 A. L. R. 1298. These words were written, and the case decided prior to the introduction into the Highway Law of section 282-c, through the...