Opinion
February 24, 1966
Appeal from the Erie Trial Term.
Present — Williams, P.J., Bastow, Goldman, Del Vecchio and Marsh, JJ.
Judgment affirmed, with costs.
I cannot agree that Continental Auto Lease Corporation is an "absentee owner". Continental entered into a purely commercial transaction to lease the automobile that was damaged, to one Carl Kamman for the mutual profit of both parties, under the terms of a rental contract. Under that contract Continental placed certain limitations and restrictions upon the use of the automobile by Kamman. In other words, it reserved a certain amount of control over the operation of the car, and Kamman was not completely free in his use of the car. Among other things, under the agreement (1) the automobile could not be abused or overloaded; (2) Kamman was prohibited from driving the car out of the State of New York without the written permission of the owner; (3) failure to return the car upon the agreed date was to constitute a violation of section 1293-a of the Penal Law of the State of New York; (4) Kamman agreed that Continental would not be liable for injuries to anyone carried in the vehicle at his invitation; (5) Kamman was prohibited from permitting the operation of the vehicle by any person under the age of 21 years; (6) the use of the automobile to propel or tow any vehicle was proscribed; (7) Kamman was prohibited from permitting any other person to operate the automobile without the approval of the owner given at the time of rental. There were other restrictions unnecessary to mention. Thus, control was shared with Kamman by Continental. Continental, which leased this automobile for its own profit, should not be permitted to occupy the highly favored position of an absentee owner who may recover for loss without regard to the fault of the driver. The Trial Judge found that Continental was entitled to the benefits of the absentee ownership doctrine as a matter of law. In my opinion the record discloses that as a matter of law Continental did not occupy such status. Historically most of the cases dealing with the rule stem from the pivotal case of Gochee v. Wagner ( 257 N.Y. 344). That case did not contemplate one in the position of Continental as being considered a gratuitous bailor. It is stated at page 347: "One who borrows a car of the owner for his own use is a gratuitous (commodatum) bailee. He is not an agent of the owner. He uses the car for his own business or pleasure, and not for any purpose in which the owner is interested." (Emphasis added.) The case of Bulat v. O'Brien ( 13 A.D.2d 904) also reflects the underlying philosophy of the Gochee case, where it is stated: "The negligence of an automobile driver is not imputable to the owner of it when the car is being operated with his consent but in his absence unless it is being used in his business or for his benefit and on his account." (Emphasis added.) Stated otherwise, neither of these cases conceives a situation where the automobile is used for a purpose in which the owner is interested ( Gochee), or for the benefit of the owner ( Bulat). In the present case, Continental had a very beneficial interest in the entire transaction including the operation of the car.