
    Bernard Schreiber, Respondent, v. John C. Matlack, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1915.)
    Automobiles — action to recover damages caused by collision — trial — when judgment reversed.
    In an action to recover damages to plaintiff’s taxicab through a collision with defendant’s automobile operated by his chauffeur, who after leaving defendant at his residence took an acquaintance for a ride, both defendant and his chauffeur testified that the car was so used without defendant’s consent or knowledge, and had never before been used by the chauffeur without permission and considerable testimony was introduced by plaintiff to impliedly contradict the testimony of defendant and his chauffeur that he had been forbidden to take out the car without defendant’s permission. Held, a ease for the jury.
    In his charge to the jury the trial judge spoke of defendant’s claim that the automobile was being used by the chauffeur outside the scope of his employment and in an enterprise of his own as a defense, and added: “ But the defense in and of itself is one which is not open to direct contradiction. In other words, it depends usually on a mental attitude, and therefore no person who is injured * * * is able to determine, and therefore in that to contradict the claim or the denial of actual control at the time of injury. The defense is one based entirely upon the credibility of the person who makes it.” Defendant having excepted to the use of the word “defense” in this connection requested a charge “ That it was incumbent upon plaintiff to prove affirmatively by a fair preponderance of evidence, first, that the accident was due to the negligence of the defendant or. his agents; secondly, that the plaintiff or his agents were free from contributory negligence; and, thirdly, that the defendant’s agent was acting within the scope of his employment.” The court said: “ I have already charged that,” and after some colloquy added, “ Then I will charge it again,” but the record on appeal from a judgment in favor of plaintiff entered on the verdict discloses that the court did not so charge and nowhere in the main charge had the judge explained or even alluded to the burden of proof. Held, that the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
    Appeal by defendant from a judgment of the City Court of the city of New York, in favor of plaintiff, entered upon the verdict of a jury.
    Blumenthal & Levy (Eugene Blumenthal and David Levy, of counsel), for appellant.
    , Feltenstein & Rosenstein (Moses Feltenstein, of counsel), for respondent.
   Bijur, J.

This action was brought to recover for damages to plaintiff’s taxicab through a collision with defendant’s automobile operated by defendant’s chauffeur, Doro. It was substantially conceded that Doro’s operation of the car at the time was negligent, and that plaintiff’s chauffeur was free from negligence, the only question really litigated at the trial being the responsibility of the defendant for the act of his chauffeur. The accident occurred about two o’clock in the morning of December 10,1912. Defendant testified that on the evening of December .ninth the automobile was used by his direction to take him to the Hotel Astor, to call for some of his friends —• none of them living north of One Hundred and Sixteenth street — and bring them to the hotel, and about midnight to take these friends home and then leave the defendant at his own residence in Ninety-eighth street; that this was concluded before one a. m. and that Doro’s duty was then to return to the garage in Eighty-seventh street. The accident occurred while defendant’s car was running south on St. Nicholas avenue and One Hundred and Twenty-fourth street. Doro testified that after leaving defendant at his residence he went to One Hundred and Fifty-fifth street, called for a woman acquaintance, and was driving her on what is commonly known as a “ joy ride ” at the time of the collision. Both defendant and Doro testified directly that the car was so used without the defendant’s consent or knowledge, and that it was purely for the personal and private purposes of Doro. They also testified that the car had never theretofore been used by Doro without defendant’s permission, and that defendant had forbidden Doro to take out the car without such permission. Considerable evidence was Introduced by the plaintiff for the purpose of contradicting by implication the claim of defendant that the car was being used by Doro without his permission. Some of the evidence to that effect was improperly admitted because insufficiently connected with the precise occurrence involved in the controversy. A policeman was permitted to testify, over adequate objection and exception, that he overheard a conversation between a lieutenant at the police station and the defendant, but, since the lieutenant himself was not called, the policeman’s testimony did not adequately identify the conversation with the one which defendant admitted he had held with a lieutenant.

Further evidence was introduced by the plaintiff to the effect that defendant had made offers or entered into some kind of negotiations for the payment.to the plaintiff of the whole or part of the damage to his taxicab; this, no doubt, for the purpose of indicating some admission of liability on his part.

On this record, it is plain, notwithstanding the claim of the defendant to the contrary, that an issue existed requiring submission to the jury. In Ferris v. Sterling, 214 N. Y. 249, the Court of Appeals, by Cardozo, J. (p. 253), quoting Norris v. Kohler, 46 N. Y. 42, 44, says: “ ‘ The property being proved to belong to the defendant * * * a presumption arises that it was in use for his benefit, and on his 'own account.’ This presumption was not destroyed, as a matter of law, by testimony for the defendant. Even though his explanation of the use of the car would absolve him if credited, the question whether it should be credited was one of fact for the jury. (Gulliver v. Blauvelt, 14 App. Div. 523; Cunningham v. Castle, 127 App. Div. 580.)”

The chief alleged error upon which appellant rests his claim for a reversal of the judgment lies in the refusal of the learned judge below to charge the following request: “In the event that the jury find that the chauffeur was at the time of the accident operating the cár with the consent or by the permission of the defendant, its verdict must, nevertheless, be for the defendant, unless it appears at the time of the accident that the chauffeur was acting within the scope of his authority and engaged upon the business of the defendant.”

Apart from some unimportant criticism of the verbiage, respondent concedes that this charge correctly states the law, hnt urges that it was inapplicable to the case at bar because the jury could not have found on the evidence that at the time of the accident the chauffeur was using the car on his own account but with the permission or consent of the defendant, and that, therefore, the request was practically for a charge on an academic question. In that view, however, I cannot concur. As I have pointed out, both defendant and. Doro had testified that defendant had forbidden the use of his car without permission and that defendant had not given permission on this occasion. Plaintiff had sought to controvert this testimony indirectly by the proof to which I have hereinabove alluded and by other evidence of the plaintiff himself which I have not cited in detail. Actual forbiddance of the use of the car, and, in a less degree, permission to use it, had some probative value on the issue whether at the time the car was being used in the master’s .service. See Cunningham v. Castle, 127 App. Div. 580, 586, 587. The subject was undoubtedly present in the minds of the jury, and the defendant was entitled to have them instructed as to the precise issue which they were called upon to determine and the relation thereto of the subordinate issues upon which evidence had been adduced by both sides.

Moreover, in the course of his charge, the learned judge spoke of the claim of the defendant “ that the automobile was being used by Doro outside of the scope of his employment and in an enterprise of his own ” as a defense. He then added: ‘ ‘ But the defense in and of itself is one which is not open to direct contradiction. In other words, it depends usually on a mental attitude, and therefore no person who is injured * * * is able to determine, and therefore in that to contradict the claim or the denial of actual control at the time of injury. The defense is one based entirely upon the credibility of the person who makes it.” Defendant excepted to the use of the word “ defense ’ ’ in this connection, and asked the court to charge: “ That it was incumbent upon the plaintiff to prove affirmatively by a fair preponderance of evidence, first, that the accident was due to the negligence of the defendant or his agents; secondly, that the plaintiff or his agents were free from contributory negligence; and, thirdly, that the defendant’s agent was acting within the scope of his employment.” The court said: “ I have already charged that,” and, after some colloquy, added, “Then I will charge it again,” but the record discloses that he did not so charge; and nowhere in the main charge had he explained or even alluded to the burden of proof.

Under the circumstances, therefore, the judgment must be reversed and new trial ordered, with costs to appellant to abide the event.

Page, J., concurs; Guy, J., concurring in result.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  