The petitioners here contend that their Exhibit 10, which is a complaint of larceny against Diaz, the driver, by Ortiz, the owner, and was sworn to by Ortiz, is proof that the vehicle was, as a matter of fact, stolen and, therefore, used without permission. Reliance is placed by the petitioners upon the case of Matter of Lowe
As I have hereinbefore mentioned, there was no accident report filed with the Department of Motor Vehicles in the instant case. And even were I to go along with the petitioner’s contention that the criminal complaint, without more, is proof of what is therein alleged–just as my learned colleague held in Lowe was the effect of the report to the Department of Motor Vehicles–there is a further fact proven in the instant case that negates the contention. For it appears that the charge of larceny made by Ortiz against Diaz was dismissed by the Criminal Court having jurisdiction upon the ground that there was not ‘sufficient cause to believe the defendant guilty of the personal injury offense.
It was further proved before me that the driver, Diaz, pleaded guilty to the charges of ‘Unlicensed Operator’ and of ‘Leaving Scene of Accident–Personal Injury’, both arising out of the same events herein involved. Diaz was found guilty on the basis of these pleas, and was committed on these two charges on November 11, 1964, the same day on which the larceny charge was dismissed. While these guilty pleas and the sworn complaints upon which the charges were based show that Diaz was driving the vehicle in question, they are not proof that he was doing so without permission or that he had stolen the vehicle. To infer, as the petitioners suggest, that, because the owner, Ortiz, lodged a complaint of larceny, the vehicle was in fact stolen would be to come to a conclusion as to which the Criminal Court found an absence of probable cause.
It is also to be noted that Ortiz’ complaint in the criminal action shows that his belief as to some of the circumstances was based upon what he was told by the arresting officer who had no personal knowledge as to the permitted use of the vehicle, and perhaps by one Villafane, who did witness the accident but had no personal knowledge as to whether Diaz stole the vehicle.
Further, considering the arresting officer’s statements, to be found in the criminal complaint of leaving the scene and in the ‘Aided and Accident Card’, which he prepared, it appears that he merely inferred that the vehicle was stolen from being told by Villafane that Diaz was the operator of the automobile, and that, after driving on to the sidewalk and injuring the claimant, Diaz walked away. While this might well be sufficient probable cause for the arrest of Diaz, it does not, in my view, demonstrate that he did, in fact, steal the vehicle or operate it without permission.
The owner, Ortiz, was not a witness in the trial before me, despite the opportunity given to the petitioners to secure his attendance, and their efforts to compel his attendance. His testimony might, of course, have been of assistance in resolving the issues in this matter; but I cannot build a case in petitioners’ favor–as they have sought to do–because of his absence. I must take the proof as it is presented to me, notwithstanding that the principal petitioner is an infant and that the petitioners’ efforts to obtain testimony in support of their case have been fruitless.
It is my conclusion that the petitioners have failed to establish: (1) the absence of a policy of liability insurance, issued either on the alleged responsible vehicle or the alleged owner or driver, in effect at the time of the alleged accident; (2) any disclaimer to liability or denial of coverage by the insurer of the allegedly responsible vehicle, owner or driver, as to the alleged accident; and (3) that the vehicle in question was either stolen or operated without the permission of its owner.
I hold, therefore, that, as to the question referred to me for trial, the alleged responsible vehicle was not, at the time of the alleged accident, an uninsured vehicle.