Naphtali v. Lafazan

• Decision Date: 29 June 1957
• Parties: Bella NAPHTALI and Mathias Naphtali v. Irving LAFAZAN.
• Court: New York Supreme Court

Page 395

165 N.Y.S.2d 395

7 Misc.2d 1057

Bella NAPHTALI and Mathias Naphtali v. Irving LAFAZAN.

Supreme Court, Trial Term, Kings County, Part XV.

June 29, 1957.

Harry H. Lipsig, New York City, for plaintiffs.

Richard J. Relyea, II, New York City, for defendant.

BECKINELLA, Justice.

Before any evidence was adduced in this action the parties stipulated to waive a jury and have the court determine all the issues. Formal findings of facts and conclusions of law were waived.

At the beginning of the trial the plaintiffs moved to amend their complaint so as to set up causes of action for damages based on the culpable negligence of the defendant. Plaintiffs, in their Supplementary Memorandum of Law, request permission to withdraw that motion. That permission is granted.

There are few facts in dispute in this controversy which arose as a consequence of an automobile accident in Ohio.

The plaintiffs, Mr. and Mrs. Naphtali, the defendant Mr. Lafazan and his wife, were in 1952 and now are residents of Brooklyn, New York. In the summer of 1952, Mr. and Mrs. Naphtali planned to take an automobile trip out West and they invited Mr. and Mrs. Lafazan to go with them. Mr. and Mrs. Lafazan accepted the invitation and the four of them traveled together in an automobile owned by Mr. Naphtali. The expenses of the trip which were due to the operation of the automobile were in the main, borne by Mr. Naphtali. On August 9, 1952 the couples were in Ohio and were proceeding along a highway there when the car overturned. The car was damaged and Mr. and Mrs. Naphtali were caused to suffer the injuries for which they seek to recover in this action. At the time of the accident, Mr. Lafazan, the defendant, was driving the car. Mr. Naphtali, the owner of the car, was seated beside the defendant on the front seat. The two women were in the back seat.

In this action Mrs. Naphtali sues for damages due to her injuries; Mr. Naphtali sues for loss of his wife's services, damage to his automobile and for damages due to his injuries.

The law of Ohio governs (Smith v. Clute, 277 N.Y. 407, 410, 14 N.E.2d 455). At the time of the accident there was in effect in the State of Ohio the following statute:

Ohio General Code, Sec. 6308-6:

'[Liability of owners and operators of motor vehicles to guests; exception.] The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wilful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.'

With slight modifications, this statute now is Sec. 4515.02 of the Ohio New Revised Code. The defendant has pleaded this statute, popularly known as the Ohio guest statute, as an affirmative defense and contends that he is entitled to judgment because the plaintiffs, when the accident happened, were within the purview of the statute and cannot recover from him because he was not guilty of 'wilful or wanton misconduct.'

Mr. Naphtali and Mr. Lafazan differ in their versions of how the accident happened. But both agree that Lafazan was driving, that it was raining on and off and that the automobile left its side of the highway, crossed to the other side, left the roadway and overturned. The court finds that while the defendant failed to use ordinary care and so was guilty of simple negligence, his conduct fell far short of the 'wilful or wanton misconduct' contemplated by the Ohio guest statute. See Birmelin v. Gist (162 Ohio St. 98, at pages 109-111, 120 N.E.2d 711, 717), where there is set forth Ohio authorities spelling out the meaning of 'wilful or wanton misconduct.' There is thus presented for determination by this court the question of whether Mr. and Mrs. Naphtali were within the scope of the Ohio guest statute at the time the accident happened or in the words of the statute, whether each was 'a guest' 'being transported without payment therefor.' Counsel for both sides agree that there is no reported case either in Ohio or in any other jurisdiction that is squarely in point, and this court has been able to discover none.

In the first cause of action Mrs. Naphtali seeks to recover for the injuries which she sustained in the accident. The defendant contends that Mrs. Naphtali as a person whose rights are limited by the Ohio guest statute may not recover in the absence of 'wilful or wanton misconduct' on the part of the defendant Lafazan.

At the time of the accident the defendant Lafazan was at the wheel of Mr. Naphtali's car and Mr. Naphtali was beside him on the front seat. In such circumstances there existed a rebuttable presumption that the driver Lafazan was the agent of the owner Naphtali (Ross v. Burgan, 163 Ohio St. 211, 126 N.E.2d 592, 50 A.L.R.2d 1275). In that case the Supreme Court of Ohio stated (163 Ohio St. 211, 126 N.E.2d 592, 596, 50 A.L.R.2d 1275, 1280):

'We believe the better and sounder rule is that, where an owner is present in his automobile, there is a rebuttable presumption that he has control and direction over it. The situation is quite different from one in which the owner is absent, in which instance no such presumption is ordinarily indulged. One being conveyed in his own vehicle and in furtherance of his own interests ought to be presumed to control his own property in his own transportation. If, in such circumstances, the presumption of agency obtains it casts on the proper persons--those who really know--the burden of producing evidence to negative the relationship (citing authorities).

'Of course, the test as to whether a person is the agent of another is the right of control of the one over the other.'

There is nothing in this case to rebut such presumption.

Lafazan, while at the wheel of Naphtali's car, was clothed with all the immunities that Naphtali possessed. 'An agent who is acting in pursuance of his authority has such immunities of the principal as are not personal to the principal' (Restatement of the Law of Agency § 347). See also Employers' Fire Ins. Co. v. United Parcel Service, 89 Ohio App. 447, 99 N.E.2d 794. In that case the court cited with approval the above section of the Restatement of the Law of Agency. The facts in the case were that the defendant United Parcel had been engaged by a storage company to deliver a fur coat to its owner. While in transit the coat was damaged. The court held that the liability of the agent United Parcel was no greater than the liability of the storage company and that its liability was limited to $100, since by contract with the owner of the coat, the storage company's liability was limited to $100. In 89 Ohio App. 447, at page 456, 99 N.E.2d 794, at page 799, the court stated:

'(4) The question naturally arises as to the extent of the defendant's liability. It was the representative of Jenny, Inc., engaged in performing its contract, when the delict occurred. Jenny, Inc.'s liability was limited to $100. Is defendant's liability similarly limited? We are of the opinion that it is so limited. Section 347 of Restatement of the Law of Agency is: 'An agent who is acting in pursuance of his authority has such immunities of the principal as are not personal to the principal.' Had the principal acted in person in carrying this coat and had been sued for the damage done, no matter what the form of action, its liability would have been limited to $100. When it engaged the defendant to get the coat for it, it clothed the defendant with all the authority and rights which it, the principal, had against the owner, including the right to have liability limited to $100. It was a defense pro tanto, available equally to Jenny, Inc. and any and all in possession of the coat under its authority.'

In Herzog v. Mittleman, 155 Or. 624, 65 P.2d 384, 109 A.L.R. 662, the Oregon court applied this principle in deciding a case which arose under the Oregon guest statute. In that case, four friends took an automobile trip in an automobile owned by one of them. While the car was being operated by one of the party other than the owner of the car, there was an accident and the plaintiff, who was riding in the back seat, was injured. He sued the driver, who contended that he was within the purview of the Oregon guest statute which required proof of gross negligence on the part of the operator of a motor vehicle before his guest could recover from him for injuries suffered in an accident. The court held that the driver was entitled to all the immunities of the owner of the car and that within the purview of the guest statute, 'A guest may become the agent of his host subject to the same responsibilities and entitled to the same immunities as his principal.' 155 Or. 624, 65 P.2d 384, 387, 109 A.L.R. 662, 665. The court further stated:

'[Plaintiff] admits that had [the owner] been driving the car at the time of the accident, a showing of gross negligence on his part would have been necessary in order for the [plaintiff] to recover. Under our view of the case [the driver], being the agent of [the owner], was entitled to the immunity of [the owner]--that is, the 'measure of the liability assumed in case of a gratuitous undertaking.''

Mr. Naphtali, as the owner of the car which was involved in the accident, was entitled to claim the benefit of the guest statute in any action brought against him. If Mr. Naphtali had been sued by his wife for the injuries which she sustained in the accident, he would have had the right to invoke the provisions of the guest statute. Although it was formerly considered to be the law of Ohio that a wife could not maintain an action in tort against her husband (Leonardi v. Leonardi, 21 Ohio App. 100, 153 N.E. 93) the Supreme Court of Ohio determined in 1952 that the Ohio constitution and pertinent st...