Miller v. Rankin

• Decision Date: 22 March 1960
• Citation: 10 A.D.2d 695,198 N.Y.S.2d 1
• Parties: Peter MILLER, an infant over the age of fourteen years by his Guardian ad Litem, Max Miller, Leslie Miller, an infant over the age of fourteen years by his Guardian ad Litem, Max Miller, Barbara Miller and Max Miller, individually, Plaintiffs-Respondents, v. Harry RANKIN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1

198 N.Y.S.2d 1

10 A.D.2d 695

Peter MILLER, an infant over the age of fourteen years by

his Guardian ad Litem, Max Miller, Leslie Miller, an infant

over the age of fourteen years by his Guardian ad Litem, Max

Miller, Barbara Miller and Max Miller, individually, Plaintiffs-Respondents, v. Harry RANKIN, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

March 22, 1960.

J. H. Brassel, New York City, for defendant-appellant.

J. J. Weisbart, New York City, for plaintiffs-respondents.

Before M. M. FRANK, J. P., and VALENTE, McNALLY, STEVENS and BERGAN, JJ.

PER CURIAM.

Order unanimously reversed on the law and the facts, with $20 costs and disbursements to the appellant, and the motion for summary judgment is denied with $10 costs. Primarily, the denial of the motion as to the fourth and sixth causes of action--from which there is no appeal--in which plaintiff Max Miller sued respectively for damages for personal injuries and property damage to his automobile, is legally inconsistent with the granting of the motion as to the fifth cause which is predicated upon Max Miller's loss of services and medical expenses of his wife and children. Since Special Term found there was a triable issue as to whether Max Miller was negligent in being in the roadway, a resolution of that issue against Max Miller at a trial would bar his recovery for damages based on loss of services of his wife (Diem v. Adams, 266 App.Div. 307, 310, 42 N.Y.S.2d 55, 58; Kokesh v. Price, 136 Minn. 304, 161 N.W. 715, 23 A.L.R. 643) and preclude his recovery for the loss of services and medical expenses of his children (Bailey v. Roat, 178 Misc. 870, 871, 36 N.Y.S.2d 465, 467; Shadwick v. Hills, 79 Ohio App. 143, 69 N.E.2d 197; Doyen v. Lamb, 75 S.D. 77, 59 N.W.2d 550.) Where the negligence of a husband and parent contributes to the accident, he may not recover for damages based upon loss of services or medical expenses. As to the first, second and third causes of action by Mrs. Miller and her two sons, who were seated in Miller's car when the accident occurred, the papers do not demonstrate such a clear case of defendant's negligence that a court would be warranted in directing a verdict for said plaintiffs. Defendant's contention is that the accident was unavoidable and that he was free of negligence. If he can successfully establish this, then none of the plaintiffs can recover against him. Here there are triable issues which may be resolved only after a...