Opinion
May 1, 1967
In an action to declare plaintiff, David A. Smyth's rights under a policy of automobile liability insurance issued by the defendant National Grange Mutual Insurance Company to defendant Rose Pellegrino, said defendants appeal from a judgment of the Supreme Court, Nassau County, dated December 19, 1964, which inter alia adjudged that said insurer is obligated to defend and indemnify plaintiff in an action brought against him by defendants Wilson. Judgment reversed, on the law and facts, and new trial ordered, with costs to abide the event. Findings of fact contained in the trial court's decision which are inconsistent herewith are reversed. In our opinion the testimony of the owner of the automobile in question, defendant Pellegrino, was insufficient to rebut by substantial evidence the statutory presumption of permission to use her car (cf. Ferris v. Sterling, 214 N.Y. 249, 253). Under section 388 Veh. Traf. of the Vehicle and Traffic Law, proof of ownership of a motor vehicle creates a rebuttable presumption that the driver was using the vehicle with the owner's permission, express or implied. It is well established that such a presumption continues until there is substantial evidence to the contrary ( Leotta v. Plessinger, 8 N.Y.2d 449, 461). At bar, defendant Pellegrino testified that she told her son Joseph that no one other than he was to drive the car. The son permitted plaintiff to operate the car while he, the son, was not in the car. While so operating the car, plaintiff allegedly caused injury to the person and property of the defendants Wilson. At the trial defendant Pellegrino's son was not called as a witness by either party. The testimony established that the car in question was used almost exclusively by Joseph; Joseph was entrusted with the keys, used the car at will and never had to ask for permission; and the car was so decorated (names and designs painted on the right and left front fenders) as to indicate it was owned by a juvenile. Since the testimony disclosed that to the world at large Joseph was clothed with all the indicia of ownership that a true owner would normally possess and since the testimony of the owner, defendant Pellegrino, was highly interested, in our opinion, Joseph, to whom the custody of the car had been entrusted and who had loaned the car to plaintiff allegedly in violation of the owner's instructions, was in the best position to corroborate or deny the owner's testimony as to instructions limiting the use of the car. In view of the paucity of evidence on the critical question of whether the owner had given her son permission to lend the car to a third person and since Joseph was not called as a witness by either party, in our opinion, justice would be served by a new trial at which additional testimony may be adduced on the question of instructions given to the son, particularly since this appears to be a case of ostensible ownership placed in the son and of secret restrictions to the son, not communicated to plaintiff, about giving the car to another operator. In our opinion the cases relied upon by the learned trial court dealing with an owner's restrictions as to the manner of operation of a car ( Arcara v. Moresse, 258 N.Y. 211) and an owner's restrictions on use of a car for a specific purpose or in a specific geographical area (e.g., Chaika v. Vandenberg, 252 N.Y. 101; Lozada v. Copeland, 207 Misc. 382) are inapplicable to the facts at bar. Ughetta, Acting P.J., Brennan, Rabin, Benjamin and Munder, JJ., concur.