Rivera v. W. & R. Service Station, Inc.

McGivern, J. ’Twas on a summer’s evening, June 30, 1963, on Bruckner Boulevard, which is in The Bronx. And Luis Rivera was rolling home in the family Chevrolet, after a Sunday visit to the Bronx Zoo. At his side was his spouse, Mrs. Cruz Rivera. When out of a gas station located at the intersection of Bruckner and Brook Avenue there sped a Ford sedan, 1954 vintage. The cars collided. At the wheel of the Ford was one, Angelo Francisco Ayala, an employee of the defendant W. & R. Service Station, Inc. At a jury trial it developed that the Ford had been left at the station by one, Ramon Acevedo, who had unfettered custody of the car from his cousin, Gilberto Feliciano. Feliciano was a merchant seaman and, as Acevedo said, 1 ‘ while he was away, you know, on the ship, I used to use his car.” On the day before, a Saturday, Acevedo, experiencing carburetor trouble, brought the car to the W. & R. garage. Ayala, employed as an attendant, told Acevedo the mechanic had left for home and would not return until Monday. Thereupon, they came to terms: Ayala would do the work, after his regular hours, on a “ moonlighting ’ ’ arrangement; he would pocket the money because, as he well and truly said, “Because I got nine kid. I got to do something. ’ ’ The owner of the garage was not present at any time that weekend. Indeed, he did not learn of the accident until days afterward. On these facts, the case went to the jury. The owner of the garage and the owner of the Ford car were both liberated by the jury. The one to beu held, Ayala, the “moonlighting” attendant with nine children, although a defendant, defaulted. He does not read English, did not even know he was being sued, and he has been legally disowned by his employer and by the owner of the car he was driving. And against him the court awarded judgment in the sum of $46,416.90. Thus, nearly seven years after the accident, we have for review a worthless judgment held by two innocent victims of an auto accident, in an auto age, found by a jury to be free of any contributory negligence. It is our view that the judgment in favor of the defendant, Feliciano, cannot be permitted to stand because a substantial right of the plaintiffs was prejudiced, warranting a new trial as to Feliciano. (See CPLR 2002.) This was occasioned by the request of counsel for Feliciano, asking the court for a charge in respect of the burden of the plaintiffs, relative to permission by the owner to the driver of the car. The attorney, after hav [117] ing first noted an exception to the court’s charge, requested the court to charge categorically that the plaintiffs had the burden of proving that the automobile 1 ‘ was being operated with the permission of the owner.” In this request, the court unqualifiedly acquiesced. However, section 388 of the Vehicle and Traffic Law, which the court did not incorporate in its charge, has been repeatedly construed by appellate courts so as to create a presumption that the driver was using the vehicle with the owner’s permission, express or implied. True, the presumption is rebuttable, but it is a continuing presumption and can be rolled back only by “ substantial evidence to the contrary. ’ ’ (Leotta v. Plessinger, 8 N Y 2d 449, 461; De Lancey v. Nationwide Ins. Co., 26 A D 2d 631; Reyes v. Sternberg, 27 A D 2d 828.) In this ease, the owner, Feliciano, did not testify. And there was little evidence, if any at all, to negate the continuing presumption that the Feliciano car was operated by Ayala with the owner’s consent transmitted by his permittee, Acevedo. As the attorney for Feliciano said: “neither Ayala nor the person who brought the car in gave any evidence whatever along these lines. In fact, this subject apparently never came up.” Indeed, if the attorney for the plaintiffs, on this record, had moved for a directed verdict against Feliciano, before the charge, in our view, he would have been entitled to it. In our opinion, however, the failure to direct the jury correctly on this crucial point adversely affected a substantial right of plaintiffs, bereaved them of an advantage given them by the statute, and merits a new trial as to this defendant, Feliciano. (Trembly v. Deso, 235 App. Div. 15.) Now, it may be urged that the plaintiffs are beyond appellate help. Their attorney stood mute in the presence of the court’s charge. He made no requests. Neither did he note an exception. But the cases are not few where, even though an exception not be taken, if the error is of such a fundamental character and the resultant injustice so egregious, that an appellate court will take hold of it in the general exercise of the court’s power to reverse and grant a new trial in the interests of justice. (Salzano v. City of New York, 22 A D 2d 656; Corcoran v. O’Brien, 21 A D 2d 838; De Joseph v. Gutekunst, 13 A D 2d 223; Bulat v. O ’Brien, 13 A D 2d 904; Booth v. City of Rochester, 258 App. Div. 849 ; Úliaszek v. Buczkowski, 259 App. Div. 967. See, also, 2A Weinstein-Korn-Miller, par. 2002.01; vol. 4, par. 4017.09; vol. 7, par. 5501.11.) And we have such a case here. The materially erroneous, or at least deficient, charge (supra) was delivered after the main charge and in response to an explicit request. And fur [118] ther confusion was wrought by the fact that previously the court had charged " The defendants do not have the burden of proving anything in this lawsuit.” Such a charge ignores the mandate of the statute (Vehicle and Traffic Law, § 388) which imposes the -continuing presumption of consent upon the owner, Feliciano, compelling him to come forward with substantial evidence to the contrary—which he neither did nor attempted to do. The deficiency in the charge constituted not simple ‘1 non-' direction ”, but clear " misdirection ”. (See Haefeli v. Woodrich Eng. Co., 255 N. Y. 442.) In contradistinction, the verdict in favor of the defendant W. & E. Service Station, Inc., must.stand. It cannot be said that the record, as to this defendant, so greatly preponderates in favor of the plaintiffs as to establish the jury’s verdict ‘ ‘ could not have been reached upon any fair interpretation of the evidence.” This is the test. (Lalomia v. Biggers, 25 A D 2d 742; Bravata v. Russo, 21 A D 2d 689.) In the instant case, the evidence against W. & R., on the issue of respondeat superior, was tenuous at best. The trial court was correct in its evaluation of this evidence as a "borderline case.” Tet, the issue was submitted to the jury in an errorless charge as a question of fact, and neither the attorney for W. & R. nor the plaintiffs’ attorney noted any exception. Nor is any error claimed by plaintiffs’ attorney in respect of evidence. That the jury understood the issue is evidenced by their request for a repetition of the charge regarding the liability of W. & R. The jury having passed on this issue as a question of fact, its verdict is final, and the defendant W. & R. should not be subjected to a second trial. This would be the equivalent of some species of civil "double jeopardy,” and it cannot be countenanced. Accordingly, we direct that the judgment be modified on the law and the facts and in the interests of justice, so as to vacate judgment in favor of the defendant Feliciano and to direct a new trial in the action against the defendant Feliciano, and as so modified, affirmed, without costs and without disbursements.