Morris v. Palmier Oil Co., Inc.
| Decision Date | 26 May 1983 |
| Citation | 463 N.Y.S.2d 631,94 A.D.2d 911 |
| Parties | Richard O. MORRIS, et al., Individually and as Administrators of the Estates of Timothy M. Morris, Deceased, and Karen L. Morris, Deceased, Appellants, v. PALMIER OIL CO., INC., Respondent, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Gibbons & Burke, Scotia (Kenneth T. Gibbons, Scotia, of counsel), for appellants.
Carter, Conboy, Bardwell, Case & Blackmore, Albany (Forrest N. Case, Jr., Albany, of counsel), for respondent.
Before MAHONEY, P.J., SWEENEY, KANE, CASEY and LEVINE, JJ.
Appeal from judgments of the Supreme Court in favor of defendant Palmier Oil Co., Inc. and against defendant Michael L. Colon, entered February 16, 1982 and July 15, 1982 in Schenectady County, upon a verdict rendered at Trial Term.
This action arose out of a fatal collision between an automobile owned by plaintiff Richard O. Morris and operated by plaintiffs' intestate, Timothy M. Morris, and a GMC van owned by defendant Palmier Oil Co., Inc. (Palmier Oil) and driven by defendant Michael L. Colon. Defendant Colon admitted liability at the commencement of the trial. Therefore, apart from the issue of damages, the only factual contest at the trial was whether the van was being operated with the implied permission of the owner. The proof established that the van was used by Palmier Oil for making service calls to its customers. Robert Clark was employed as a serviceman by Palmier Oil, and since he had to respond to service calls at night and on weekends, the van was entrusted to him on virtually a full-time basis. Defendant Colon is the half brother of Clark and resided with him. When the accident occurred, Colon was driving the van after having borrowed it from Clark in order to deliver a bed to the home of their parents. The president of Palmier Oil testified that Clark had been instructed when he was first hired in 1975 that the van was not to be used by anyone but him and then only for company business. Palmier Oil's corporate secretary and service department manager confirmed that those instructions continued to be company policy and that he also had instructed Clark on several occasions since 1977 that the van was to be used for business purposes only and not for any personal use. Clark was called as a witness by Palmier Oil and confirmed that he was instructed that the van was not to be driven for anything but company purposes, that he was "sure they didn't want nobody else driving it" and that he "knew that it was wrong to let him take the truck, yes". The law is well established that restricted authorization to use a vehicle negates an owner's liability for an accident occurring subsequent to a breach of the restriction (Leotta v. Plessinger, 8 N.Y.2d 449, 461, 209 N.Y.S.2d...
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