Chaika v. Vandenberg

• Decision Date: 19 November 1929
• Citation: 169 N.E. 103,252 N.Y. 101
• Parties: CHAIKA v. VANDENBERG.
• Court: New York Court of Appeals Court of Appeals

252 N.Y. 101

169 N.E. 103

CHAIKA

v.VANDENBERG.

Court of Appeals of New York.

Nov. 19, 1929.

Action by Dmytro Chaika against Cornelius Vandenberg. From a judgment (226 App. Div. 732, 233 N. Y. S. 720), affirming a judgment of the Trial Term, entered upon a verdict directed by the court in favor of plaintiff, a jury having been waived, defendant appeals.

Reversed, and new trial granted.

Appeal from Supreme Court, Appellate Division, First Department.

James B. Henney, of New York City, Theodore H. Lord, of Brooklyn, and Daniel Miner and William S. O'Connor, both of New York City, for appellant.

Harry Hartman, of New York City, for respondent.

LEHMAN, J.

The plaintiff was struck and injured in the city of New York by an automobile owned by the defendant and operated at the time of the accident by the defendant's son. The evidence sufficiently shows that the injuries were the result solely of the negligence of the operator of the car. The defendant claimed that at the time of the accident his son was not operating his car in his business nor with his permission, and that he was, therefore, not responsible for any negligence of his son.

At the trial the parties stipulated that they would waive a jury, and ‘that the court may direct a verdict with the same force and effect as if a jury were present.’ The defendant admitted that he owned the car. He testified that his son, a young man over 21 years of age, resided with him at Floral Park, Long Island. Whenever the son desired to use the car for a trip on Long Island, the defendant gave his son permission to do so, but he would not allow his son to use the car to go to New York City. On the evening of the accident the son, according to the defendant's testimony, asked permission to use the car to go ‘to Westbury, Long Island, to visit some friends.’ In answer to the question, ‘What did you tell him about using the car?’ the defendant testified: ‘I told him that he could use the car for a trip to Long Island, because it is very hard to travel there, but I would not allow him to take the car into the city and he promised he would not do that, so I let him have the car for Long Island.’

If the defendant's testimony is true, then the son must have disregarded the defendant's limitation upon the use to which he might put the car, for the accident occurred in New York City. Upon that ground the defendant moved to dismiss the complaint. The trial judge reserved decision upon that motion, and thereafter directed a verdict in favor of the plaintiff in the sum of $1,000. In his opinion directing the verdict, the court expressly stated that: ‘The evidence with respect to the circumstances under which the car was taken out on the particular occasion is not very satisfactory, but I do not consider it material. * * * Where the owner intruststhe car to another to be used in the business or for the pleasure of the driver, I do not think that violation of restrictions put upon the route to be taken should relieve the owner from liability under the statute.’

The statute (section 282-e of the Highway Law [Consol. Laws, c. 25], now section 59 of the Vehicle and Traffic Law [Consol. Laws, c. 71]) provides that: ‘Every owner of a motor vehicle * * * operated upon a public highway shall be liable and responsible for death or injuries to person or property resulting from negligence in the operation of such motor vehicle * * * in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner.’

Even before that statute was enacted, presumptively the owner of a motor vehicle was responsible for the manner in which it was driven. Ferris v. Sterling, 214 N. Y. 249, 108 N. E. 406, Ann. Cas. 1916D, 1161;Potts v. Pardee, 220 N. Y. 431, 433,116 N. E. 78, 79, 8 A. L. R. 785. In the latter case it was said: ‘The presumption growing out of a prima facie case, however, remains only so long as there is no substantial evidence to the contrary. When that is offered the presumption disappears, and, unless met by further proof, there is nothing to justify a finding based solely upon it.’ Here the only evidence offered to meet the prima facie proof of control by the defendant is the defendant's own testimony in regard to the restricted permission given to his son. It is not corroborated in any way, and the interest of the witness and the character of the evidence might, not unreasonably, lead to doubt of its truth, even though not contradicted. A trier of the fact might resolve this doubt against the defendant. If this evidence is discarded, the prima facie proof of the defendant's control remains unrebutted. ‘This evidence was not sufficient in law to destroy the presumption of control, although it might have been in fact.’ Moore v. Rosenmond, 238 N. Y. 356, 359, 144 N. E. 639, 640. See, also, Ferris v. Sterling, supra; Fallon v. Swackhamer, 226 N. Y. 444, 123 N. E. 737;Der Ohannessian v. Elliott, 233 N. Y. 326, 135 N. E. 518.

The plaintiff now urges that, since the trial judge in directing the verdict had power to pass upon all disputed questions of fact, we must presume that the question of the control of the automobile was...