Rivera v. W. & R. Service Station, Inc.

McNally, J.

(dissenting in part). I vote to affirm.

In this negligence action, plaintiffs appeal from parts of a judgment after a jury trial which dismissed the complaint in respect of defendants-respondents.

The jury found defendant Ayala negligent and both plaintiffs not negligent. They also found that Ayala had no permission to drive the. car from its owner, Feliciano, or his permittee, Acevedo, and that Ayala was not operating the car within the scope of his employment.

Since there were no exceptions taken to the Trial Judge’s charge, the charge became the law of the case (Kluttz v. Citron, 2 N Y 2d 379, 383-384): “ Even if we could reach that question on its merits, the state of the record is such that it is not at all clear that it has been preserved for review by the taking of a timely and proper exception, without which the instruction, even if erroneous, becomes the law of the case.”

We have repeatedly held a jury verdict in favor of a defendant should not be set aside unless the evidence so preponderates in favor of the plaintiff that no fair view of the record sustains it. (Salvitelli v. Janusz, 19 A D 2d 886; Marton v. McCasland, 16 A D 2d 781, and cases therein cited.) Although this court has inherent power to grant a new trial in the interest of justice, this case does not present an adequate basis for its exercise.

An objective review of the issues is not advanced by adverting to the alleged social status and financial irresponsibility of the judgment debtor herein, which was not an issue on the trial and is irrelevant on the issue of liability.

The unanimous affirmance of the judgment in favor of defendant-respondent, W. So R. Service Station, Inc., leaves open the issue of liability as to the defendant Feliciano. In the evening of June 30, 1963, Feliciano’s automobile collided with that of plaintiff Luis Rivera. On the previous day, one, Acevedo, operating Feliciano’s car with his consent, left it at the service station of defendant W. So R. Service Station, Inc. with its employee, the defendant Ayala, to repair or replace the carburetor. Implicit in the jury’s verdict for the defendant W. So R. Service Station, Inc. is that Ayala personally undertook the work and that he was not the agent or employee of W. So R. Service Station, Inc. in that regard.

Ayala completed the work on Feliciano’s automobile on the day it was left. The accident occurred on the evening of the following day, in the vicinity of the service station. The record does not establish the relation, if any, between Ayala’s operation of the Feliciano car at the time of the occurrence and the work on it. It. does not appear that the work on the car required its testing by operation of it on the public highway, or that such use was otherwise connected with the servicing of the automobile (cf. Zuckerman v. Parton, 260 N. Y. 446). Even if it be assumed that Feliciano himself left the car with Ayala, there would be a jury question as to his liability, because there is no evidence relating Ayala’s use of the car with the repair for which it was left in his custody. (May v. Heiney, 12 N Y 2d 683; Leotta v. Plessinger, 8 N Y 2d 449; Reyes v. Sternberg, 27 A D 2d 828; Cosimo v. Hollenbeck, 19 A D 2d 921; Brindley v. Krizsan, 18 A D 2d 971.) Here, in addition, there is no evidence vis-a-vis Acevedo and Ayala of authority to operate the car for any purpose on the day of the occurrence or any other time. On the contrary, Acevedo testified he did not give permission “ to drive that automobile anywhere ” other than the service station where he had brought it to be fixed. In the circumstances, the prevailing opinion, in concluding that plaintiffs would have been entitled to a directed verdict against Feliciano, is grossly in error. In Reyes v. Sternberg (supra) under similar circumstances, we held that the issue of permissive user of an automobile on the part of an automobile mechanic with respect to its registered owner was a fact issue for the jury.

In addition to ignoring the record, the majority sua sponte, assigns error to the additional charge that plaintiffs had the burden of proving the automobile was being operated with the owner’s permission. Plaintiffs do not make a point of said charge. The charge is unquestionably correct. (St. Andrassy v. Mooney, 262 N. Y. 368, 371.) It is simply a corollary of the principle that plaintiffs have the burden of establishing their ease by a preponderance of the evidence. The majority, again sua sponte, reasons that the failure to charge the presumption of the owner’s permission under section 388 of the Vehicle and Traffic Law was prejudicial error. Plaintiffs did not request such a charge. The record establishes the court did charge the effect of section 388 as follows:

“ Ownership of a car is prima facie evidence of the owner’s responsibility for an accident caused by a driver’s negligence.

‘ ‘ Permission to a third party to operate a motor vehicle may be implied if the owner leaves the car with a third party for repair which the owner knows or has reason to believe necessitates driving the car on the highway.

‘1 An owner is liable for the negligence of any person to whom he has expressly or impliedly given permission to use or operate his motor vehicle. ’ ’

Plaintiffs’ summation also included the argument: “ Now, the law makes Gilberto Feliciano responsible for the accident. This is to say, if the automobile was being driven with the consent, implied or expressed, of the owner of the car, then the owner is liable, which is a good law. It’s there for a reason.”

On this record, it cannot be fairly said that the verdict in favor of appellant Feliciano is not sustained by the record. In addition to the absence of any exceptions to the charge, the record does not establish any error in the charge. There'is no predicate for the direction of a new trial in the interest of justice where, as here, the case has been carefully, fairly and fully tried, without legal error. On the contrary, justice is poorly served if the record is ignored to sustain the direction of a new trial on grounds not relied on by the appellants, especially in view of the fact that the defendant Feliciano had a cross complaint over against W. & R. Service Station, Inc. which was dismissed in the light of the verdict.

Capozzoli, J. P., Nunez and Telzer, JJ., concur with McGtvern, J.; McNally, J., dissents in opinion.

Judgment so far as appealed from modified on the law and the facts and in the interests of justice, so as to vacate judgment in favor of the defendant Feliciano, to sever the action and to direct a new trial in the action against the defendant Feliciano, and as so modified, affirmed, without costs and- without disbursements.