
    Thomas Maher, Respondent, v. Albert C. Benedict, Appellant.
    Second Department,
    January 10, 1908.
    Negligence — motor vehicles—parent and child — negligence of son — trial — credibility of witness.
    The liability of an owner of a motor car for the negligence of one driving it in his absence depends upon whether the relation of master and servant existed at the time. It must be shown that at the time of the injury the driver was within the control of the owner, or executing his orders, or doing his work.
    An owner who allows his son, twenty years of age, to drive such vehicle at his pleasure is not liable for injuries received by his negligence when the owner was not present, and the son was not acting for him but was driving the car for his own purposes.
    In an action to recover for injuries so received, the fact that the defendant’s son, called as a witness by the plaintiff, testified without contradiction that on the day of the accident he used the machine without his father’s knowledge does ■ not require a submission of the question of his credibility to the jury, for the plaintiff by calling the witness certified his credibility in so far as he was not contradicted.
    So, too, when the owner’s testimony as to the circumstances surrounding the use of the car by his son is not contradicted by any direct evidence, nor any legitimate inference therefrom, and is not opposed to the probabilities, nor in- its nature surprising or suspicious, the credibility of the witness does not necessarily raise a question for the jury.
    Hooker, J., dissented.
    Appeal by the defendant, Albert 0. Benedict, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 18th day of March, 1907, upon the verdict of a jury for $150, and also from an order entered in said clerk’s office on the 18th day of March, 1907, denying the defendant’s motion for a new trial made upon the minutes..
    
      
      Ralph Earl Prime, Jr., for the appellant.
    
      Henry R. Barrett, for the respondent.
   Jenks, J.:

The action is for the negligent driving of a motor ear, whereby •the plaintiff’s horses took fright and ran away. In consequence the plaintiff,- who stood at the horses’ heads, was injured. The question in the case is as to the liability of the defendant. He owned the car. At the time of the accident he was not in the car. It was driven by his son, a man twenty years old. Liability cannot be cast , Upon the defendant because he owned the car, or because he permitted his son to drive the car whenever he wished to do so (Cavanagh v. Dinsmore, 12 Hun, 468) or because the driver was his son. (S. & R. Neg. [5th ed.] § 144.) Liability arises from the relationship of. master and servant, and.it must be determined by the inquiry whether the' driving at the time was within the authority of the master, in the execution of his orders or in the doing of liis work. In Cavanagh v. Dinsmore (supra) the court say: “ It is well settled that the master is not liable for injuries sustained by tlie negligence of his servant, while engaged in an unauthorized act, beyond the scope and duty of his employment, for his own or another’s purposes, although the servant is using the implements or property of the master in such unauthorized act.” As to' the rule see, also, Sheridan v. Charlick (4 Daly, 338); Stone v. Hills (45 Conn. 44); McCarthy v. Timmins (178 Mass. 378); Perlstein v. American Express Co. (177 id. 530); Long v. Richmond, (68 App. Div. 466; affd., 175 N. Y. 495); Storey v. Ashton (L. R. 4 Q. B. 476). Although the evidence was sufficient to establish a cause" of action for negligence, it was not, sufficient, to. sustain a judgment against this defendant. The plaintiff called the driver of the machine as.a witness, who testified to his driving and the owner-' 'ship of his father. On cross-examination lie testified that he took out the machine on that day without his father’s knowledge or direction, and that he was about his own business at the time. When recalled for the defendant he testified that the time was the day before Christmas ; that he started'for Pleasantville where his grandfather lived ; that it was a general Custom to bring up presents to the farm hands on his grandfather’s farm, and that he was carrying up a package of Ms oM clothes; that his sisters were at the farm and that he had started with the idea of bringing them home.- He had said nothing to Ms -father of his own proposed gift. On cross-examination he did not recall what else he was carrying besides his own old clothes. The car had been out of order, frozen up,” and it had been talked over that morning that he was to go before his . sisters and take up the presents from his sisters, together with his own old clothes; but nothing of^ his father’s or from his father. The father testifies that he did not know that his son had taken out the car; that his daughters' had told him on that morning that they wished to go to Pleasantville and of their errand, and they went by train. This witness testifies that he had told them to return by train because the day'was cold. He further testifies that the taking of the car was not discussed in Ms presence and that he did not think his son was going out or that anybody else was going out but his daughters, and that he had told his son at.breakfast that it was not a fit day to drive the car. The fact that the testimony of the cir-" curnstances surrounding the driving of the car on this occasion was given by the son of the defendant and by the defendant did not require a submission to the jury. The son had been called as a witness in the first instance by the plaintiff, who thereby certified him as creditable, and to be believed so far as he was not contradicted. (Rey v. Equitable Life Assurance Society, 16 App. Div. 194, and authorities cited; McCarthy v. Timmins, supra, 382.) As the testimony of the father is “ not contradicted by direct evidence, nor by any legitimate inferences from the evidence, and it is not opposed to. the probabilities; nor, in its nature, surprising or suspicious,” the credibility thereof was not necessarily for the jury. (Hull v. Littauer, 162 N. Y. 569; Molloy v. Whitehall Portland Cement Co., 116 App. Div. 839.)

The judgment is reversed and a new trial is ordered, costs to abide the event.

Woodward and Miller, JJ., concurred; Hooker, J.,dissenting-; Hirsohberg-, P. J., not voting. "

Judgment and order of the County Court of Westchester .county reversed and new trial ordered, costs to abide the event.  