Flocco v. Carver
| Decision Date | 21 November 1922 |
| Parties | FLOCCO v. CARVER et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Angelo Fiocco, an infant, by Vincenzo Fiocco, his guardian ad litem, against Amos D. Carver and others. A judgment for plaintiff entered upon a verdict was affirmed by the Appellate Division (200 App. Div. 33,192 N. Y. Supp. 493), and defendants appeal.
Reversed, and complaint dismissed, with costs.
Appeal from Supreme Court, Appellate Division, First department.
George F. Hickey, R. Waldo MacKewan and William Butler, all of New York City, for appellants.
William S. O'Connell, of New York City, for respondent.
The defendants, engaged in business in the city of New York, sent a truckload of merchandise from Manhattan to Staten Island. The duty of the driver when he had made delivery of the load was to bring the truck back to the garage at Twenty-Third street and Eleventh avenue on the west side of the city. Instead of doing that, he went, as he tells us, to Hamilton street on the east side, to visit his mother. A neighborhood carnival was in progress in the street. A crowd of boys, dressed in fantastic costumes, as Indians, Uncle Sam, cowboys, and the like, were parties to the frolic. They asked the driver for a ride, and, in response to the request, he made a tour of the district, going from Hamilton street to Catherine, then through other streets, and back again to Catherine. At this point he stopped in front of a pool room, and left his truck for a moment to say a word to a friend. It is here that the plaintiff, a child of 11 years, arrived upon the scene. The merry-makers were still crowding about the truck. The plaintiff with a playmate tried to join them. While he was climbing up the side, the driver came back, and three times ordered him to get off. As the third order was given, the plaintiff started to come down, but before he could reach the ground, the truck, as he tells us, was started without warning, and his foot was drawn into a wheel. The driver gives a different story, insisting that the boy ran after the moving truck, and climbed on the side when it was impossible to see him. All the witnesses agree that the truck as it left Catherine street was still carrying the boys. The driver adds that his purpose then was to go back to the garage. Upon these facts a jury has been permitted to find that he was in the course of his employment. The ruling was upheld at the Appellate Division by a divided court. We think the judgment may not stand.
[1] The plaintiff argues that the jury, if it discredited the driver's narrative of the accident, was free to discredit his testimony that there had been a departure from the course of duty. With this out of the case, there is left the conceded fact that a truck belonging to the defendant was in the custody of the defendant's servant. We are reminded that this without more sustains a presumption that the custodian was using it in the course of his employment. Norris v. Kohler, 41 N. Y. 42, 44;Ferris v. Sterling, 214 N. Y. 249, 253,180 N. E. 406, Ann. Cas. 1916D, 1161. But the difficulty with the argument is that in this case there is more, though credit be accorded to the plaintiff's witnesses exclusively. The presumption disappears when the surrounding circumstances are such that its recognition is unreasonable. Fallon v. Swackhamer, 226 N. Y. 444, 447,123 N. E. 737. We draw the inference of regularity, in default of evidence rebutting it, presuming, until otherwise advised, that the servant will discharge his duty. We refuse to rest upon presumption, and put the plaintiff to his proof, when the departure from regularity is so obvious that charity can no longer infer an adherence to the course of duty.
[2] Such a departure is here shown, apart altogether from the narrative put before us by the driver. The plaintiff's testimony, confirmed by the testimony of his witnesses, breaks the force of the presumption that might otherwise be indulged, and leaves his case unproved unless something is in the record, in addition to the presumption, to show that the defendant's servant was in the course of the employment. The wagon was an electric truck, intended for the transportation of merchandise in connection with the defendants' business. At the time of the accident it was crowed with boys, ‘packed as thick as sardines,’ whom the driver was taking on a frolic. The filled, not only its body, but also the roof and sides and box. Plainly on proof of these facts the presumption vanishes that the driver was discharging his duty to the master. The character of the transaction is so extraordinary, the occupation of the truck by the revellers so dominant and exclusive, as to rebut the inference that the driver was serving his employer at the same time that he was promoting the pleasure of his friends. The dual function, if it existed, can no longer rest upon presumption. Regularity will no longer be taken for granted when...
To continue reading
Request your trial
-
Bradley v. S.L. Savidge, Inc.
... ... or used by counsel in argument ... As ... Cardozo, J., said in Fiocco v. Carver, 234 N.Y. 219, ... 137 N.E. 309, 310: 'We will no longer presume anything ... What the plaintiff wishes us to find for him, that he ... ...
-
Sealed Case, In re
...law doctrine of respondeat superior, historically a question of law within the provenance of courts. See, e.g., Fiocco v. Carver, 234 N.Y. 219, 137 N.E. 309 (1922) (Cardozo, J.). On the other hand, a "substantial federal interest" may vary depending upon federal policy and upon factors "suc......
-
Bobos v. Krey Packing Co.
... ... sec. 383, p. 473; Wampler v. Railroad Co., 269 Mo ... 464; State v. Rowe & Sanders, 271 Mo. 88; Sweet ... v. Maupin, 65 Mo. 65; Carver v. Thornhill, 53 ... Mo. 283; Maplegreen Realty Co. v. Mississippi Valley ... Trust Co., 237 Mo. 350; Polski v. City of St ... Louis, 264 Mo ... ...
-
Southern Bell Telephone & Telegraph Co. v. Quick
... ... characterize the intent of the transaction. Fiocco ... [149 So. 111] ... v. Carver, supra, at page 223 [of 234 N.Y. 219], 137 ... N.E. 309, 310 ... "In ... this case the defendant, directing the servant's ... ...
-
Table of Cases
...Dept 1975), §32:03 Finning v. Niagara Mohawk Power Corp. , 281 AD2d 844, 844, 722 NYS2d 613, 615 (3d Dept 2001), §8:04 Fiocco v. Carver , 234 NY 219, 223, 137 NE 309, 310 (1922), §§18:60, 18:62 Fiorenti v. Central Emergency Physicians, PLLC , 39 AD3d 804, 835 NYS2d 345 (2d Dept 2007), §13:4......
-
Alternatives to Testimonial and Physical Proof
...Thereafter, the presumption is not evidence in the case and may not be considered in weighing the evidence. [ See also Fiocco v. Carver , 234 NY 219, 223, 137 NE 309, 310 (1922) (in an opinion by Judge Cardozo, the presumption of regularity “will no longer be taken for granted when irregula......
-
Alternatives to Testimonial and Physical Proof
...Thereafter, the pre-sumption is not evidence in the case and may not be considered in weighing the evidence. [ See also Fiocco v. Carver , 234 NY 219, 223, 137 NE 309, 310 (1922) (in an opinion by Judge Cardozo, the presumption of regularity “will no longer be taken for granted when irregul......
-
Alternatives to Testimonial and Physical Proof
...Thereafter, the presumption is not evidence in the case and may not be considered in weighing the evidence. [ See also Fiocco v. Carver , 234 NY 219, 223, 137 NE 309, 310 (1922) (in an opinion by Judge Cardozo, the presumption of regularity “will no longer be taken for granted when irregula......