Opinion
November 17, 1969
In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Orange County, entered June 6, 1967 in favor of respondent upon a jury verdict. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The findings of fact below are affirmed. One of the issues raised at the trial was whether the driver of the car had the permission of the owner to use the car. There was evidence tending to prove that respondent, the owner, gave his car keys to Dolores McMillian who gave them to Johnny Rumph. It is undisputed that Rumph drove the car while Dolores McMillian was a passenger therein. Plaintiff was also a passenger and was injured when the car went off the road, allegedly due to the driver's negligence. Under the doctrine of Arcara v. Moresse ( 258 N.Y. 211), plaintiff was entitled to a charge to the jury that the owner is liable for the negligence of the driver if the owner gave permission to another to drive and the latter was in the car while it was being driven (see PJI 2:249). The court's failure to so charge was especially erroneous in light of the question submitted by the jury during its deliberation: "Does one person have the right to give the owner's keys to another person?" Brennan, Acting P.J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.