Power v. Arnold Engineering Co. — 142 A.D. 401

Majority

p. 401

Robert Power, Respondent, v. The Arnold Engineering Company, Appellant, Impleaded with Josef M. Bing, Defendant.

First Department,

January 6, 1911.

Headnote

Motor vehicles — negligence — injury by automobile ownéd by corporation — use of machine by officers for pleasure trip.

A plaintiff who was injured while driving on a highway by a collision with an automobile, owned by a corporation and used in its business, cannot recover from the corporation where it appears that the car at the time of the accident, though driven and occupied by officers of the corporation and their friends, was being used solely for a pleasure trip having nothing whatever to ' do with the business of the corporation.

Appeal by the defendant, The Arnold Engineering Company, 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 4th day of May, 1910., upon the verdict of a jury for $400, and also from an order entered in said clerk’s office on the 3d day of May, 1910, denying the said defendant’s motion for a new trial made upon the minutes.

Arthur I. Strang, for the appellant.

James S. Lehmaier, for the respondent.

" The plaintiff seeks to recover for injuries sustained by him by reason of the negligence of the defendant’s agent and servant in the conduct of an automobile which came into collision with a phaeton in which the plaintiff was riding along a public highway in-the borough-of Brooklyn on July 25, 1907.

p. 402

. Upon the trial it developed that the defendant was engaged in business at the time of the occurrence in question in surveying, land at-Ossining and Briar diff ' in this State, and that the automobile which collided with plaintiff’s phaeton .was used by defendant in carrying surveyors and helpers to and from their eniployment on defendant’s business in these two localities; that defendant had no business of any kind on Long Island at that time, and that the trip which was then being taken by the occupants of such automobile was' a pleasure trip, and was not one which had any connection whatever with the business of the defendant corporation. It was proven that the automobile in question was driven by one Bing,the secretary and treasurer of the defendant corporation, and that accompanying him was the niece of its president, while the president himself, with his wife and a clergyman, occupied the second car. Both parties were on their way to Bockaway Beach or Far Bockaway. This was established not only by the testimony óf defendant’s president but by that of his wife and of his guest.

'The case as submitted to the jury is devoid of any suggestion contradicting defendant’s witnesses; nor is it even indicated upon what the contention may be based that the automobile at the time of the accident was being used about the business of the defendant. The verdict in favor of plaintiff was against the weight of evidence and the judgment and order must, therefore, be reversed and a new trial ordered, with costs to tl,ie appellant to■ abide the event.

Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.'

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