Petzold v. Avis Rent-A-Car System, Inc.

• Decision Date: 30 December 1960
• Docket Number: RENT-A-CAR
• Citation: 12 A.D.2d 118,209 N.Y.S.2d 121
• Parties: Anna D. PETZOLD, an Infant, by her Guardian ad Litem, Margaret Petzold, Plaintiff, v. AVISSYSTEM, INC., Defendant-Respondent, Januarius A. Mullen, Defendant, County of Rensselaer, Robert Wells and Donald Yerton, Defendants-Appellants. Ruth PETZOLD, an Infant, by her Guardian ad Litem, Margaret Petzold, Plaintiff, v. AVISSYSTEM, INC., Defendant-Respondent, Januarius A. Mullen, Defendant, County of Rensselaer, Robert Wells and Donald Yerton, Defendants-Appellants. Thomas PETZOLD, Plaintiff, v. AVISSYSTEM, INC., Defendant-Respondent, Januarius A. Mullen, Defendant, County of Rensselaer, Robert Wells and Donald Yerton, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 121

209 N.Y.S.2d 121

12 A.D.2d 118

Anna D. PETZOLD, an Infant, by her Guardian ad Litem, Margaret Petzold, Plaintiff, v. AVIS RENT-A-CAR SYSTEM, INC., Defendant-Respondent,

Januarius A. Mullen, Defendant, County of

Rensselaer, Robert Wells and Donald

Yerton, Defendants-Appellants.

Ruth PETZOLD, an Infant, by her Guardian ad Litem, Margaret

Petzold, Plaintiff, v. AVIS RENT-A-CAR SYSTEM, INC., Defendant-Respondent,

Januarius A. Mullen, Defendant, County of

Rensselaer, Robert Wells and Donald

Yerton, Defendants-Appellants.

Thomas PETZOLD, Plaintiff, v. AVIS RENT-A-CAR SYSTEM, INC., Defendant-Respondent,

Januarius A. Mullen, Defendant, County of

Rensselaer, Robert Wells and Donald

Yerton, Defendants-Appellants.

Supreme Court, Appellate Division, Third Department.

Dec. 30, 1960.

E. Stewart Jones, Troy, for plaintiff.

Wager, Taylor, Howd & Brearton, Troy, for defendants-appellants (James E. Brearton, Troy, of counsel; James T. Ronan, Mechanicville, on the brief).

Murphy, Aldrich, Guy, Broderick & Simon, Troy, for defendant-respondent (Morris Simon, New York City, of counsel; Bernard Simon, Troy, on the brief).

Before BERGAN, P. J., and COON, GIBSON, HERLIHY and REYNOLDS, JJ.

BERGAN, Presiding Justice.

Infant plaintiffs were passengers in a car owned by Avis Rent-A-Car System, Inc., and hired and operated by Januarius A. Mullen. The car came into collision with a Rensselaer County snow plow operated by defendants Wells and Yerton. The infant plaintiffs brought actions against Avis, Mullen, Rensselaer County, Wells and Yerton, which have been consolidated.

In its answers Avis demanded judgment over against Rensselaer County and its plow operators if Avis were held liable to the plaintiffs. The court at Special Term denied a motion to dismiss these cross complaints. We are of opinion a good case of liability over is not demonstrated.

On the trial of the action the issue will be whether Mullen was negligent; and whether Wells and Yerton were negligent. If Mullen was negligent, it will be attributed to Avis and judgment will be against Avis; if he was not negligent Avis will have judgment in its favor whether or not the snow plow operators were negligent.

If the operators of the Rensselaer snow plow were negligent, judgment will follow against them and the county. If operators of both vehicles were negligent, judgments will follow against all defendants.

There is no relationship here between Avis and Rensselaer County which would make pertinent any theory of 'active-passive' negligence. Avis possesses no legal right requiring Rensselaer County to indemnify it if a Rensselaer County vehicle and one of Avis' vehicles became involved in a collision and the driver of Avis' vehicle was negligent. No requirement for indemnity exists in a situation such as this.

The fact that perhaps because of its absence from control of the vehicle, the negligence of the operator of the Avis car might not defeat an action by Avis against another party based on the other party's negligence has nothing whatever to do with the problem posed by this case.

Avis could...