Brindley v. Krizsan
| Decision Date | 05 March 1963 |
| Citation | 238 N.Y.S.2d 260,18 A.D.2d 971 |
| Parties | Dorothy R. BRINDLEY and Arthur Brindley, Plaintiffs-Respondents, v. Istav KRIZSAN and United States Fidelity & Guaranty Company, Defendants-Appellants, and Motor Vehicle Accident Indemnification Corporation, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
James M. Gilleran, New York City, of counsel (John J. O'Connor, New York City), for defendants-appellants.
Frederick H. Block, New York City, of counsel (Heffner, Block & Block, New York City), for plaintiffs-respondents.
Leonard Hemley, New York City, of counsel (Robert G. Sheller, New York City), for defendant-respondent.
Before RABIN, J. P., and STEVENS, EAGER, STEUER and BASTOW, JJ.
Judgment herein in all respects affirmed, on the facts and the law, with costs to defendant-respondent as against appellants. Proof of ownership of a vehicle creates a presumption that the driver was using the vehicle with the owner's permission, express or implied. This presumption is rebuttable but, even in the case of substantial evidence to the contrary, the question of consent and authority is ordinarily one of fact. (Leotta v. Plessinger, 8 N.Y.2d 449, 461, 209 N.Y.S.2d 304, 312, 171 N.E.2d 454, 459, and cases cited. See, also, May v. Heiney, 12 N.Y.2d 683, 223 N.Y.S.2d 474, 185 N.E.2d 910.) Here, there is support for the finding of the trial court that the owner vested his friend Zsombok with general control of the car without limitation of authority. Under these circumstances, a driver to whom Zsombok loaned the car was properly found to be driving it with the implied consent of the owner (May v. Heiney supra; Jackson v. Brown & Kleinhenz, Inc., 273 N.Y. 365, 7 N.E.2d 265), and the fact that such driver was unlicensed does not affect the statutory responsibility of the owner (Grant v. Knepper, 245 N.Y. 158, 156 N.E. 650, 54 A.L.R. 845; Aarons v. Standard Varnish Works, 163 Misc. 84, 89, 296 N.Y.S. 312, 319, affd. 254 App.Div. 560, 3 N.Y.S.2d 910).
All concur except STEUER, J., who dissents in dissenting opinion. Judgment herein in all respects affirmed, on the facts and the law, with costs to defendant-respondent as against appellants.
The issue in this action for a declaratory judgment is which of the two defendants will be required to meet and defend plaintiff's claim. Plaintiff alleges injuries resulting from being struck by an automobile owned by defendant Krizsan and insured by defendant United States Fidelity & Guaranty Company. These defendants claim that at the time of the accident the automobile was being operated by an unauthorized person. If that is the fact, plaintiff cannot proceed to a successful conclusion against the insured but may against the other defendant, MVAIC. So much is conceded by all parties.
The facts regarding the use of the car at the time as found by the trial court are amply sustained by the testimony. The only question is the legal conclusion to be drawn from those facts. Krizsan, the owner, had a friend named Zsombok. Zsombok asked permission to use the car to go to a Christmas party. Permission was granted and the only material remark made by the lender at the time was a request that Zsombok get back early. At the party Zsombok loaned the car to one A'Hearn so that the latter could take a young lady home from the party. A'Hearn was not licensed to drive and it was while he was driving that the accident occurred. The question is whether the permission to Zsombok carried with it permission to lend to another. If it did, Special Term was undoubtedly correct in finding that the fact that he loaned the car to an unlicensed driver does not affect the result (Aarons v. Standard Varnish Works, 163 Misc. 84, 296 N.Y.S. 312, affd. 254 App.Div. 560, 3 N.Y.S.2d 910).
The general rule of law that is applicable is not in dispute. A general loan of a car carries with it the permission to allow others to drive...
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