New-York tribune., 1908-07-28
AUTO OWNERS IMMUNE
THAT is, IN SOME CASES.
AppelIate DiUisiOn Hands DoIcn an
Interesting Decision.

4 decision OF much interest to autonooLe own
ers was handed down yesterday By the APpeiiate
Division OF the Supreme Court. when three or the
five justices held that the owner OF car cannot
be held liable for damages resulting from an acct-
dent which occurs when a chauffeur Is using the
car even with the owners consent but solely for
the personal business or pleasure OF the cnaurleuT
The dissenting opinion was that immunity from
liability should exist only when the driver - lslns
the car without the owners consent OF against his
orders
TIE Importance Of this ruling is evident from tho
number OF accidents some resulting rataly' Wnere
the car has been operated BY a chauffeur accom-
uaufed BY his friends The decision was given IN
reversing a verdict obtained BY George Cunning
ham against Burton s Castle Cunningham vas
knocked down and run over early on SeptenOer
Iq 1904 BY an automobile owned BY Mr. Caste anu
cperated by Harry Boes. his chauffeur The latter
vas accompanied BY two women and man Botn
Mr. Castle and Boes in their testimony agreed
that the chauffeur had asked and obtained bis en-
pIoyer's consent 10 go for pleasure ride 70 Har-
lem. He was returning and was al asr street anu
Central Park West when he struck Cunningham
Counsel for the defendant asked the trial tusties
to charge the jury on this point:
The mere fact that the person IN charge OF tha
automobile at the time OF the accident was An en-
5 i pF 9efendsnt,s busirsss at the time ths
any injuries to the plaintiff resulting therefrorn-
Instead. the trial justice charged:
But I charge you that the fact that the machine
cbaufer f. Ie with s the m owners permission places Pea
the owner the sane dsgree o, d 80 1sr ,ss 80
imposed upon him If the chauffeur were then en-
The opinion OF the Appellate Division ordering q
reversal of the verdict for the plaintiff and new
trial was written BY Justice Clarke, with Justics
Insrahan and Justice Scott concuring- The as
sentinz opinion was written By Justice Houshtons
and Justice Mclaughlin concurred-
In the prevailing opinion Justice Clarke said tnas
IT must Be conceded that the chauffeur was using
the car with his masters consent but FOR his OWE
Measure In taking up the contention OF the plain
tiff that an automobile is "a dangerous fnstru-
mentality and that. because OF this Character ths
owners liability still existed. Justice Clarke said
II is not necessarily a dangerous device 1t 10
an oriinary vehicle OF pleasure and business II n
no more dangerous per Sc than team or norsss
and carriage, or a gun, or sailing boat or q
motor launch
There was no evidence. ha continued. 70 show
that the chauffeur not competent TO handle tbs
car that being his business. II ga1ekeeper scc1-
dentally shot a person while using his masters
gun Justice Clarke asked whether the master wouls
be deemed responsible Then he said
do not think that the question OF the isnorancs
or consent OF IN fas master H. nas ga any ybsr t srsr
80 ,I!sG TIE bcrsaS or the zu+or1obfla without
his consent has probatfvs force upon the PROPOSE
se son aI n 70 e gagsers Business within the scope
OF his employment The q1esuon IS "hetner ns
II without the knowledge OF his master he took
the car from the garage to machine snop 10 nave
II fixed and accident occurred, the fact or the
want OF knowledge the master part Would
not affect the liability, because the act would %
scope Of the servants employment ana
in the prosecution Of the masters business II the
chauffeur were granted a two weeks vacation and
the master said him. II going on on a trip
and will not need the machine; you may take ic
and use it for your own pleasure while ! an
gone cannot think that he would Be reSponstole
for any negligence OF the chauffeur during that
period
In ordering new trial Justice Clarke said
reach the conclusion that upon prtndple and
authority the charge TO the tury) was fatally er-
roueous in the matter excepted to-
Justice Houghtor. in the dissenting opinion held
that the chauffeur hired TO properly care Tor
the machine and 20 properly house it for the night
Regarding this he wrote
Even while he was gone his own business
this duty remained with him and ne vas oelnS
r,sid for the performance OF that duty oy u1e oe-
fendaut Il does to me- th1I rns cnal1I-
feur was en1anctpared during the tr1p. notN1ln-
standing It was for his oUn pleasure
I concede that Il the chauffeur had tazen tns
machine without the consent OF the master anu
c1ontrarv 10 his orders his act would then have
been entirely outside OF the scope OF his employ
uent.