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Dyke v. Bolves

Decided: October 30, 1969.

JOHN R. VAN DYKE, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, AND NINA VAN DYKE, PLAINTIFF,
v.
HERBERT A. BOLVES, DEFENDANT-APPELLANT AND CROSS-RESPONDENT, AND JAMES M. MORGAN, DEFENDANT



Goldmann, Lewis and Matthews. The opinion of the court was delivered by Goldmann, P.J.A.D.

Goldmann

John R. Van Dyke sued for personal injuries and property damage arising from an accident when a truck owned by defendant Bolves and driven by defendant Morgan crashed head-on into his automobile on Harristown Road, Glen Rock, N.J. His wife sued for loss of consortium. The jury returned a unanimous verdict of $40,000 for Mr. Van Dyke and $1,500 for his wife against both defendants. Bolves moved for a new trial on the grounds that the verdict was excessive and against the weight of the evidence; the trial judge, over objection, had charged the jury on the New York Motor Vehicle Law as being applicable to the case and, further, the judge had refused to charge as requested by Bolves. The motion was denied, the judge stating that Bolves' request to charge related solely to the question of agency, which issue had been eliminated from the case; that the charge on the New York Motor Vehicle Law was given because the car was registered in New York and controlled by New York law as far as permission was concerned, and that the verdict was not against the weight of the evidence. He refused to set aside the $1,500 verdict in favor of Mrs. Van Dyke, holding that it was reasonable. However, insofar as the verdict for John Van Dyke was concerned, he said:

Accordingly, he entered an order sustaining Mrs. Van Dyke's $1,500 verdict, reducing her husband's $40,000 verdict to $25,000, and ordering that plaintiffs make known to the court within ten days whether they accepted the reduced verdict and, if not, Van Dyke was to have a new trial as to damages only.

Van Dyke rejected the reduced verdict and notified the court he was moving for leave to appeal. Leave was denied. Defendant Bolves then appealed from so much of the order as granted plaintiffs (sic -- Mrs. Van Dyke should not have

been included) a new trial on damages only. Van Dyke cross-appealed from the reduction of his verdict.

The accident took place in New Jersey and the Van Dyke car was registered here. Bolves was a resident of Suffern, N.Y. He was a roofer-contractor and his shop was located in Airmont, N.Y. Morgan was Bolves' employee and a New York resident. The truck driven by Morgan was registered in New York and insured there. The main factual issue at the trial was whether Morgan was driving the truck with Bolves' permission, express or implied. The assignment judge for the vicinage had, before trial, ordered that the jury was to make a special finding of fact as to whether Morgan drove Bolves' truck with the latter's permission.

Bolves testified that he noticed the truck was missing at about 2:15 P.M. He said that the keys were usually left in the ash tray, seat or ignition of the truck. Bolves went in search of Morgan and, after making two stops locally in New York, headed for Paterson shortly after 3 P.M. He passed the truck as it was driving north, turned around in pursuit and finally caught up with it. Bolves further testified that he blew his horn, shouted to get Morgan's attention, and got out of his car. Morgan saw him and drove off. Bolves' car stalled, and he decided to let Morgan go. Shortly before 4 P.M. he again met up with the truck when he saw it coming up behind him. Bolves pulled over into a small parking lot and tried flagging Morgan down. Morgan did not stop; Bolves took up the pursuit and witnessed the accident. It was not until about 4:50 P.M. that Bolves reported to the local New York police department that the truck had been stolen.

Van Dyke's father testified that 12 days after the accident he and his wife went to the Bolves home where they spoke to Bolves and his wife. Mrs. Bolves, in the presence of her husband, told the Van Dykes that Morgan had worked for them a long time. "He was a nice boy, he seemed like one of the family. * * * He never gave them any trouble and he was a good worker."

Morgan did not appear for depositions or at the trial, and the interrogatories he answered were correctly ruled to be not binding as to Bolves.

Based upon what was admitted in evidence, the jury could well have resolved the issue of permission by concluding there was implied permission, despite Bolves' contention that permission had not been asked by Morgan, nor was permission given, but rather that Morgan had taken or stolen the car for his own purpose.

Bolves argues that the law of New Jersey, and not that of New York, was applicable because the accident occurred in New Jersey and plaintiffs were New Jersey residents. Therefore, he says, the judge was wrong in charging the jury under the New York statute, section 388 of the New York ...


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