State Farm Mut. Auto. Ins. Co. v. Huther

• Decision Date: 04 March 1963
• Citation: 38 Misc.2d 346,238 N.Y.S.2d 176
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff, v. Carol HUTHER, Defendant.
• Court: New York County Court

Page 176

238 N.Y.S.2d 176

38 Misc.2d 346

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff, v. Carol HUTHER, Defendant.

Oneida County Court.

March 4, 1963.

John Duggan, Utica, for plaintiff.

Gardner Callanen, Jr., Utica, for defendant.

JOHN J. WALSH, Judge.

This case presents unusual questions of fact and an intriguing question of law. The plaintiff is the owner of an automobile which was being driven on a public highway in this county by one, Frederick Dell, an adjuster. The car was in collision with an automobile owned by the defendant, Carol Huther and operated by one, Robert Bachle. The testimony of Frederick Dell is undisputed by the defendant and establishes that the accident was caused by the negligent operation of the defendant's car by Bachle and that there was no contributory negligence on the part of the plaintiff's operator, Frederick Dell, and this court so finds as a fact.

The parties stipulated in open court that the damage to the plaintiff's car would amount to $742.35 according to the testimony of qualified mechanics if they were called to the stand to testify. It was also stipulated that the defendant, Carol Huther, was the owner of the said automobile at the time of the accident.

The sole question presented to the court for decision involved whether or not defendant, Carol Huther who was sued alone in the action was liable pursuant to Section 59 of the Vehicle and Traffic Law. ¹

The automobile in question was originally the property of Bachle who gave it to Miss Huther as a birthday gift. Bachle had sometime in the past lost his license to drive an automobile. Miss Huther had also had some difficulty with her license in the past and was apparently unlicensed as an operator. She admitted on the witness stand that she gave implied permission to Bachle to use the car which had at the time registration plates issued by the State. She also testified that she never thereafter specifically withdrew such permission.

Thereafter, in attempting to obtain a driving license for herself, she made application for a license. The Motor Vehicle Bureau denied such license and apparently because of a false statement as to her previous license, the Bureau revoked her registration of the car and ordered her to surrender the plates which she did. The automobile was allowed to remain without plates.

On the day of the accident, without the knowledge of the defendant, Bachle attached the license plates of someone else to the defendant's car and drove the automobile and was involved in the collision with Dell. Bachle was not a party to the lawsuit, nor a witness, nor was his present whereabouts disclosed.

This presents the mixed factual and legal question as to liability. Obviously, the car was not stolen (Wilson v. Harrington, 269 App.Div. 891, 56 N.Y.S.2d 157, affirmed 295 N.Y. 667, 65 N.E.2d 101) neither was its use specifically forbidden nor circumscribed (Ermann v. Kahn, 229 App.Div. 693, 242 N.Y.S. 573, affirmed 255 N.Y. 627, 175 N.E. 342).

The fact that the operator of the car was unlicensed at the time does not preclude liability since a 'legal user' has been held to be one who is using the vehicle with the owner's permission, whether or not he be licensed. Aarons v. Standard Varnish Works, 163 Misc. 84, 296 N.Y.S. 312 (Sup.Ct.1937) affirmed without opinion 254 App.Div. 560, 3 N.Y.S.2d 910 (1st Dept....