In Fluegel v. Coudert, 244 N.Y. 393, the court refers to the doctrine of the Potts case as "obsolete," because of the passing of a statute bearing on the subject.Summary of this case from Watson v. Trinz
Argued January 19, 1927
Decided February 23, 1927
Appeal from the Supreme Court, Appellate Division, First Department.
Sidney S. Bobbe and Clarence W. Roberts for appellant. Alfred M. Bailey and Frank J. O'Neill for respondent.
We think the uncontradicted evidence necessitates the conclusion that the driver of the motor car was using it at the time of the accident for his own purposes exclusively, without the permission and against the commands of the defendant, his employer ( Der Ohannessian v. Elliott, 233 N.Y. 326).
This being so, the plaintiff gains nothing from section 282-e of the Highway Law (Consol. Laws, ch. 25), which provides that "every owner of a motor vehicle 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, 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."
The effect of this statute is to render obsolete the doctrine of such cases as Van Blaricom v. Dodgson ( 220 N.Y. 111) and Potts v. Pardee ( 220 N.Y. 431, 436). Liability is no longer dependent upon use or operation by a servant in the "business" of a master. Liability is dependent upon legal use or operation in business "or otherwise," with permission or consent. The owner who loans a car to a friend or an employee will be liable hereafter for the negligence of the operator though the loan is unrelated to employment, a mere friendly accommodation. The father will be liable for the negligence of the son to whom he has intrusted the use of the family automobile ( Van Blaricom v. Dodgson, supra). We make no attempt at exhaustive enumeration. What has been said will suffice for illustration and example.
The driver employed by this defendant was not using or operating this car with the owner's permission, express or implied. He was not using or operating it legally. Use or operation without the consent of the owner may now constitute a crime (Penal Law, § 1293-a).
The judgment should be affirmed with costs.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS, LEHMAN and KELLOGG, JJ., concur.