Adele Heissenbuttel, Respondent, v. Mark C. Meagher, Appellant

Adele Heissenbuttel, Respondent, v. Mark C. Meagher, Appellant. First Department, May 29, 1914. Motor vehicles—negligence — use of automobile by son of owner — when owner not liable. A person owning an automobile used as a pleasure vehicle by himself and his family is not liable for personal injuries caused by the negligence of his son, an adult, who was driving the car for his individual purposes in company with friends who were not members of the family. Appeal by the defendant, Mark 0. Meagher, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of May, 1913, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 9th day of May, 1913, denying defendant’s motion for a new trial made upon the minutes. Stephen P. Anderton, for the appellant. Abraham Gruber, for the respondent. [MAJORITY — Hotchkiss, J.:] Hotchkiss, J.: The plaintiff, while standing in a, public street waiting for a surface car, was struck and injured by an automobile belonging to defendant and driven by his son, a young man twenty-four years of age. This son was pursuing his studies as a law student and lived with his father as a member of his family. The automobile was a pleasure vehicle kept by defendant for the use of himself and his family; his son was privileged to use it for his individual purposes whenever he so desired. It was customary also for the son to act as chauffeur of the car when it was used by defendant or other members of the family. On the occasion of the accident the son had taken the car out for a pleasure drive accompanied by several of his friends. Neither defendant nor any other member of his family, except his son, was in the party. It is evident from these facts that when the accident happened the car was neither expressly nor constructively in the use or service of the defendant, and that in driving the car the son was in no way acting as the defendant’s agent. Under these circumstances we' hold that defendant is not liable for his son’s negligent operation of the car. The principle involved has been applied in so many cases that the citation of but a few will suffice. (Tanzer v. Read, 160 App. Div. 584; Freibaum v. Brady, 143 id. 220; Cunningham v. Castle, 127 id. 580; Maher v. Benedict, 123 id. 579.) The judgment and order appealed from should be reversed, with costs, and the Complaint dismissed, with costs. Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred. Judgment and order reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.