Antoinette Arcara, Respondent, v. Mario Moresse, Appellant, and Salvatore Barone, Defendant

Fourth Department, December, 1930. Antoinette Arcara, Respondent, v. Mario Moresse, Appellant, and Salvatore Barone, Defendant. [MAJORITY — Per Curiam.] Per Curiam. We think that a material question in this case was whether the owner of the ear limited the authority of the bailee Maggio by an instruction that he should allow no one else to drive. This question was not submitted to the jury, but the court erroneously charged the jury as though no such limitation had been imposed, and an exception was taken to this. In view of this exception and in the interests of justice, considering the importance of this particular question, we are of the opinion that the judgment should be reversed on the law and facts. All concur, except Taylor, J., who dissents and votes for affirmance upon the ground that the question whether defendant Moresse had directed his bailee Maggio not to permit a third person to drive the automobile was not submitted to the jury; that defendant Moresse did not get this question into the case by exception or request to charge and that, therefore, no error appears in the record requiring a new trial. Present — Sears, P. J., Crouch, Taylor, Edgeomb and Crosby, JJ. Judgment reversed as to the defendant Moresse on the law and facts, and a new trial granted, with costs to the appellant to abide the event.