Harper v. Parker

• Decision Date: 28 February 1961
• Citation: 211 N.Y.S.2d 325,12 A.D.2d 327
• Parties: Lillian HARPER, as Administratrix of the Estate of June Harper, Plaintiff-Respondent, v. Roger PARKER and Selma Parker, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 325

211 N.Y.S.2d 325

12 A.D.2d 327

Lillian HARPER, as Administratrix of the Estate of June Harper, Plaintiff-Respondent, v. Roger PARKER and Selma Parker, Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

Feb. 28, 1961.

Wm. D. Van Pelt, New York City, for appellant Selma Parker.

Seymour L. Colin, New York City, of counsel (Jacob A. Millstein, New York City, atty.), for respondent.

Before BOTEIN, P. J., and BREITEL, VALENTE, STEVENS and BASTOW, JJ.

PER CURIAM.

Defendants, mother and son, appeal from a judgment upon a verdict for the plaintiff in a death action. Upon the trial, a jury found that the defendant Roger Parker negligently caused the death of plaintiff's intestate, June Harper, and that his negligence was imputable to his mother. Judgment was entered against both defendants for the sum of $17,500, plus interest and costs.

The events leading to the death of June Harper in the early morning hours of February 5, 1955, as they appear from the plaintiff's proof, were as follows: During the preceding evening, defendant Roger Parker, Katie May Sealy, John Almond and the decedent were at the Parker home, where they remained until midnight or shortly thereafter. All were, at the time, between 16 and 18 years of age. Plaintiff, who was the mother of the deceased June Harper, testified that defendant Selma Parker later admitted to her that she had instructed her son Roger late in the evening to 'take the keys and take the children home.' The four youngsters left the house and walked to a garage, where an automobile owned by defendant Selma Parker was parked. After leaving one of the garage doors slightly ajar, Roger, with the others, climbed into the car, Roger and the decedent in front, and the other couple in the rear. Roger started the engine to 'keep it warm' but did not drive out of the garage. Soon they all fell asleep, and, after an indeterminate time, Roger awoke, feeling sick. He awakened the others but was unable to arouse June Harper. After taking Katie May Sealy to her home, Roger and John Almond proceeded to a hospital with June, and there she was found to be dead of carbon monoxide poisoning.

Although there was disagreement and doubt among the defense witnesses as to whether it was defendant Selma Parker or her husband who instructed Roger to take his companions home, none of them testified that any direction or authority was given to Roger to use his mother's automobile. Roger claimed that on the way to the garage, some two and one-half blocks from the Parker home, he told the others they would not to out in the car. He testified that he proposed open one of the garage doors approximately 12 or 15 inches using a heavy wire braced on the car's rear bumper and that he and Katie May Sealy climbed into the back seat while John Almond and the decedent got in front. He said he produced an ignition key, a duplicate of his mother's key which he had obtained surreptitiously some months previously, and handed it to one of the two people in the front seat. John Almond testified it was he who took the key and started the engine. According to Roger's testimony, the engine was kept running for ten or fifteen minutes to unlock the power for the heater and radio, but it was turned off before they fell asleep.

Roger admitted he had used his mother's car on several previous occasions without her permission and had driven it around the neighborhood. When driving in the company of his parents he stated he never used his duplicate key. His father testified he had not known of Roger's previous use of the car or of his possession of a key. On the night in question he claimed to have told his daughter 'Look, you better tell Roger to take the girls home', but he denied having told Roger to take the car.

Upon all of the evidence, and for the reasons set forth below, the judgment should be reversed as to both defendants and the complaint dismissed.

Plaintiff, quite properly, placed no reliance upon former Section 59 of the Vehicle and Traffic Law in seeking to impute the son's alleged negligence to the mother, for that section, which was amended and reenacted as the present Section 388, applied at the time of the decedent's death only to the operation of mother vehicles upon a public highway. Here, there was no evidence that plaintiff's intestate succumbed to the carbon monoxide poisoning anywhere but in a purposely stationary automobile in a private garage. Accordingly, it was incumbent upon plaintiff to prove, under the common law, not only that the automobile was used with Mrs. Parker's permission but also that such use was for her benefit (...