Benevento v. Poertner Motor Car Co.

• Decision Date: 27 February 1923
• Citation: 139 N.E. 213,235 N.Y. 125
• Parties: BENEVENTO v. POERTNER MOTOR CAR CO.
• Court: New York Court of Appeals Court of Appeals

235 N.Y. 125

139 N.E. 213

BENEVENTO

v.POERTNER MOTOR CAR CO.

Court of Appeals of New York.

Feb. 27, 1923.

Action by Mary Benevento, as administratrix, against the Poertner Motor Car Company. From an order of the Appellate Division, and judgment entered thereon, affirming by a nonunanimous decision (200 App. Div. 887,192 N. Y. Supp. 338) a judgment of the Trial Term, entered on a verdict for plaintiff, defendant appeals.

Reversed, and new trial granted.

Cardozo and Crane, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First department.

Theodore H. Lord and Fred H. Rees, both of New York City, for appellant.

David L. Weil, Harold R. Medina, and Moses Feltenstein, all of New York City, for respondent.

HOGAN, J.

[1] On September 15, 1920, plaintiff's intestate died as the result of injuries received by him due to a collision with an automobile at Amsterdam avenue and West Eightieth street, in the city of New York, about 1 o'clock, or early thereafter, in the afternoon of that day. The automobile was the property of defendant, which maintains a salesroom and office on Broadway, between Fifty-Sixth and Fifty-Seventh streets, in the city of New York, at which place it is engaged in the sale of automobiles. In addition defendant maintains a service station on West Fifty-Seventh street, between Eleventh and Twelfth avenues, in New York, and a store in Newark, N. J. Amongst other employees of defendant was one Phipps, a licensed chauffeur, who was operating a car of defendant at the time of the accident. Upon proof of such facts a presumption arose that the car was at the time of the accident engaged in the business of defendant, and it was incumbent upon defendant to rebut such presumption.

The evidence adduced on behalf of defendant disclosed: On the morning of September 15, 1920, Phipps was directed by one Seller, manager of defendant, to go to the Newark store, there get a Scripps-Booth sedan car which had been sold to a customer in Brooklyn, and bring the car to the New York store. Phipps, who frequently performed a like service, proceeded in company with one Mr. Renner by automobile to Newark, procured the sedan, and started for New York. He entered the city by the Forty-Second street ferry, drove through Forty-Second steet to Tenth avenue, northerly on Tenth avenue to Seventy-First street, where the same intersected Amsterdam avenue, thence up Amsterdam avenue to Eightieth street, where the accident occurred, a location upwards of one mile northerly of the salesroom of defendant, where he was directed to take the car. Phipps was at the time unmarried, and resided or roomed at No. 21 West 136th street, some three miles northerly of the place of the accident. During the time he had been in the employment of defendant, a period of upwards of 1 1/2 years, he was accustomed to eat his lunch at a restaurant on Eighth avenue at Fifty-Third street. His explanation of his presence at Eightieth street and Amsterdam avenue was that, when he left his residence in the morning, he had 40 cents in money on his person, 36 cents of which he paid for ferry charges on his return from Newark, and, not having sufficient money to purchase his lunch, he started for his residence on West 136th street to obtain money to pay for his lunch. He testified that he did not tell anybody connected with the defendant that he was going with the car to his house, and it was not the custom to draw money in advance from defendant. He intended to eat his lunch at the restaurant on Eighth avenue at Fifty-Third street. On cross-examination the witness testified that, as to his disbursement of 36 cents for defendant, he would have to tell about it after his return to the store and ask for it; that on previous occasions sometimes he was given money to pay ferry charges, and on other occasions he was not, and, when not, he paid the charge, and afterwards was paid the same. He had theretofore used cars of defendant around the city, and if out at lunch hour he would stop and get his lunch and then go on with his work, but at no time were any of defendant's men with him.

After the accident Phipps was taken to the station house by a police officer. He did not recall having told the officer how the accident happened, but did relate the facts surrounding the same to the lieutenant at the desk at the police station house. He did not remember stating to the police officer that his employer had sent him to the factory to get a car and directed him to go to his dinner with it, so as to hurry up and be back in time, because they wanted him. On redirect examination the witness testified that he did not say to any one that he was hurrying home to dinner, but did say, not having any money left, ‘I started on my way home to get some money for my lunch;’ that he did not remember that it was to any one save the lieutenant at the station house, but, whichever officer it was, that is what he told. On recross-examination, one Niemand, a police officer, was pointed out to the witness, and the witness persisted in his response that he did not remember telling the officer the story as asked him, but did tell it to the lieutenant. He denied that he told any person that his boss sent him home with the car to dinner; did not tell anybody that he was sent home; only said he was on his way home to lunch, and, as matter of fact, was not sent home by any boss with the car to go to his lunch.

Four witnesses connected with defendant at its salesroom testified that no orders or permission to use the car as the same was used by Phipps were given him. One of the witnesses was Seller, the manager of defendant, who gave the order to Phipps to go to Newark, get the car,...