Opinion
November 5, 1970
Appeal from a judgment of the County Court, Delaware County, entered May 15, 1969, upon a verdict of no cause of action rendered at a Trial Term in favor of defendants. Plaintiff sued to recover for damages sustained by his automobile while it was being operated by his girl friend, with his permission but in his absence and as the result of a collision with a motor vehicle owned by one defendant and operated by the other. There was evidence: that the girl friend met a Mrs. Kilmer, her acquaintance, in Walton; that they "just rode around town", "no place special"; that they did not make any stop and were not planning on going anywhere; and that when they were a short distance outside and while making a turn to go back into Walton the impact occurred. The jury was instructed that the plaintiff, in order to succeed, must establish that he himself was free from negligence and that defendants were negligent and the court refused a request to charge the jury as to when an automobile operator's negligence is not imputed to an absentee owner, the request being substantially in the language enunciated in Mills v. Gabriel ( 259 App. Div. 60, affd. 284 N.Y. 755), to which instruction and refusal exception was taken. In an action to recover property damage to an owner's automobile, the negligence of said automobile's 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 used in his business or for his benefit and on his account. Since the evidence in this case did not establish as a matter of law that plaintiff's car was being so used, it was fundamental and reversible error to refuse the request, particularly in the light of the unlimited instruction concerning contributory negligence. (Cf. Bulat v. O'Brien, 13 A.D.2d 904.) Judgment reversed, on the law and the facts, and a new trial ordered, with costs. Herlihy, P.J., Reynolds, Staley, Jr., Cooke and Sweeney, JJ., concur.