Gochee v. Wagner

Sears, P. J.

The plaintiff received bodily injuries in a collision between an automobile owned by him and driven at the time by his wife, and an automobile owned and operated by the defendant. The plaintiff’s automobile was also damaged. The action was brought by the plaintiff to recover damages for his physical injuries and injuries to his automobile, which he claimed resulted from the defendant’s negligence.

The learned trial justice, instead of leaving the case to the jury to return a general or special verdict in its discretion, and although no motion for a nonsuit or direction of a verdict was pending (Civ. Prac. Act, § 459), submitted a series of questions with instruction to the jury to return a special verdict thereon. On the special verdict consisting of answers to the questions submitted, a verdict in favor of the plaintiff for his damages was directed by the court. The practice adopted was acquiesced in by both parties to the action. The question whether the common-law relation of master and servant or principal and agent existed between the plaintiff and his wife at the time of the accident was not submitted to the jury, and no request for its submission was made.

The jury found that the plaintiff himself was free from negligence, that his wife was negligent, that her negligence caused or contributed to cause the accident, that the defendant was negligent, that his negligence caused or contributed to cause the accident, and that plaintiff’s damages amounted in all to the sum of $3,625. It was undisputed in the case that the plaintiff’s wife was driving the car with the express permission of her husband. The defendant does not contend upon this appeal that her operation of the car was subject to the plaintiff’s direction or control.

The defendant argues that the judgment is erroneous because under the provisions of section 59 of the Vehicle and Traffic Law, as he claims, the contributory negligence of the plaintiff’s wife operating the car with the plaintiff’s consent bars a recovery by the plaintiff. The pertinent provision of section 59 of the Vehicle and Traffic Law is as follows: “ Every owner of a motor vehicle or motor cycle operated upon a public highway shall be liable and responsible for death or injuries to person or property resulting from negligence in the operation of such motor vehicle or motor cycle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner.”

At common law the negligence of the driver of a motor vehicle under the circumstances specified in the statute is not attributable to the owner. (Van Blaricom v. Dodgson, 220 N. Y. 111; Heissenbuttel v. Meagher, 162 App. Div. 752; affd., 221 N. Y. 511; Fischer v. International R. Co., 112 Misc. 212; Spelman v. Delano, 177 Mo. App. 28; Rockland Lake Trap Rock Co. v. Lehigh Valley R. R. Co., 115 App. Div. 628.)

The statutory provision now contained in section 59 of the Vehicle and Traffic Law (formerly section 282-e of the Highway Law, added by Laws of 1924, chap. 534; as amd. by Laws of 1928, chap. 508) changed this rule so that an owner should be held responsible to third parties for the negligence of a driver under such circumstances. In Plaumbo v. Ryan (213 App. Div. 517) the purpose of the statute is stated to be to “ prevent an owner from escaping liability by saying that his car was being used without authority or not in his business.” In construing it, consideration must be given to the law as it existed when the statute was enacted and to the mischief which it was designed to remedy. (Woollcott v. Shubert, 217 N. Y. 212; Cohen v. Neustadter, 247 id. 207.) It is now claimed that it also restricts the owner’s common-law right of recovery against a negligent third party. The argument is based upon the theory that the statute constitutes the driver operating the owner’s car with the owner’s permission, the agent or servant of the owner so that the driver’s negligence is in all cases imputed to the owner. The argument, in my judgment, is not sound. Neither the word “ agent ” nor the word “ servant ” is used in the statute. A situation arises, to be sure, by virtue of the statute in eases where liability and responsibility are sought to be imposed upon an owner in favor of an injured third person, which is analogous to the situation arising in a similar case where the driver is in fact the agent or servant of the owner. It is often convenient, therefore, to discuss the situation arising under the statute in terms of agency as was done in Psota v. Long Island R. R. Co. (246 N. Y. 388), but the analogy is limited by the very terms of the statute to cases involving the liability and responsibility of the owner.

No such situation is involved in this case. Here we are dealing with the liability and responsibility of a third party to the owner, not the liability and responsibility of the owner. While the statute is remedial, it is remedial solely in favor of an injured third person. It is not to be wrenched out of its intended purpose and its language distorted in order to conform it to the conventional pattern of common-law agency. The driver is not in fact the agent of the owner and the statute does not make him such. No intention can be found in this statute to broaden the scope of the doctrine of contributory negligence. The modem trend of the law is rather to limit the effect of that doctrine. In my opinion, therefore, the trial court was right in holding that section 59 of the Vehicle and Traffic Law had no application to this case.

The judgment and order should, therefore, be affirmed, with costs.

All concur, except Taylor and Crosby, JJ., who dissent in an opinion by Crosby, J., and vote for reversal on the law and for judgment dismissing the complaint upon the special verdict of the jury. Present — Sears, P. J., Taylob, Edgcomb, Thompson and Ceosby, JJ.