Soulantzos v. Shell Oil Co.

• Decision Date: 21 February 1974
• Citation: 353 N.Y.S.2d 297,76 Misc.2d 1095
• Parties: Susan SOULANTZOS, Thomas Soulantzos, Plaintiffs, v. SHELL OIL CO., and Luc Joseph, Defendants.
• Court: New York City Court

Page 297

353 N.Y.S.2d 297

76 Misc.2d 1095

Susan SOULANTZOS, Thomas Soulantzos, Plaintiffs, v. SHELL OIL CO., and Luc Joseph, Defendants.

Civil Court of the City of New York, Queens County, Part IX.

Feb. 21, 1974.

Norman Eric Teitler, for plaintiffs.

McLaughlin, Fiscella & Gervais, New York City, for defendants.

OPINION

VINCENT F. NARO, Judge.

In this negligence action plaintiff Susan Soulantzos sues for personal injuries and plaintiff Thomas Soulantzos sues for property damage to his automobile as a result of a collision with a truck owned by defendant.

It appears that plaintiff Susan Soulantzos was operating the automobile owned by plaintiff Thomas Soulantzos in the absence of plaintiff Thomas Soulantzos, but for the benefit of plaintiff Thomas Soulantzos.

In Gochee v. Wagner, 257 N.Y. 344, 178 N.E. 553, it was held that the negligence of the driver of an automobile would be imputed to the owner of the automobile if he was a passenger in the automobile at the time of the accident, so as to bar the owner's claim for injuries against a third party. The reasoning of the Court as stated on page 348, 178 N.E. 554, was: 'When the respondent entered the car, he regained dominion over it * * *. It was respondent's car, he was present and had the legal right to control its operation, and the negligent conduct of the driver was imputable to him.'

In Mills v. Gabriel, 259 App.Div. 60, aff'd 284 N.Y. 755, 31 N.E.2d 512 the Court refused to impute negligence to an owner of an automobile, which was being used with his permission in his action for property damage to his automobile against a third-party when he was not present in the automobile at the time of the accident and the operator of the automobile was using it for his own private purpose and not for the benefit of the owner.

The defendant in the case at bar requested the Court to charge the jury that insofar as the claim of plaintiff Thomas Soulantzos for property damage is concerned, since it is conceded that plaintiff Susan Soulantzos was driving the automobile for the benefit of plaintiff Thomas Soulantzos that any negligence on the part of plaintiff Susan Soulantzos must be imputed to plaintiff Thomas Soulantzos. The defendant argues that under the holding in Mills (supra), the only time that the negligence of the driver of an automobile will not be imputed to an absentee owner is in the case where the automobile is being used for the purpose of the driver. The Court denied defendants' request.

The Court agrees with the defendants' interpretation of the holding in Mills. However, the Court is of the opinion that the distinction made in Mills as to whether the automobile is being used for the purpose of the...