Geller v. Sherman

• Decision Date: 15 December 1965
• Parties: Arthur GELLER, Plaintiff, v. Sophie SHERMAN, Defendant.
• Court: New York Supreme Court

Page 671

266 N.Y.S.2d 671

48 Misc.2d 1049

Arthur GELLER, Plaintiff, v. Sophie SHERMAN, Defendant.

Supreme Court, Trial Term, Kings County, Part VI.

Dec. 15, 1965.

Benjamin Eigg, New York City, for plaintiff, Stanley Bryer, New York City, Gustave G. Rosenberg and Lawrence M. Rosenberg, New York City, of counsel.

Gillies & Mahoney, New York City, for defendant; Warren Harrison, New York City, of counsel.

BENJAMIN BRENNER, Justice.

I find, upon the preponderance of the evidence, that the injuries sustained by plaintiff, while a passenger in the car owned by defendant, were caused by the negligence of its operator and without contributory fault, for which he is justly entitled to recover, provided there is no merit to defendant's affirmative defense that plaintiff's injuries are compensable by workmen's compensation.

Upon the agreed facts the plaintiff and the operator were at the time of the accident returning to their motel room, having spent the evening socializing after a day's work as fellow employees. The work assignment to which they were directed by their employer was in a place distant from their homes so that lodging and travel expense were provided for the week to include the day following, when the work was to be completed. In the circumstances, the defendant urges that plaintiff's injuries, while a passenger in defendant's car, are compensable because the scope of employment encompassed the entire stay, including social activity in the leisure time.

It is now established that if the injury is sustained through the negligence of a co-employee in the course of employment, that the exclusive remedy is that provided by the Workmen's Compensation Law and the injured person is barred from suit against either the employer or his fellow employee (Workmen's Compensation Law, § 29, subd. 6). And, where a car operated by a negligent coworker in the course of employment is not owned by such fellow employee or employer, workmen's compensation is still the exclusive remedy if the cause against the owner is derivative pursuant to section 388 of the Vehicle and Traffic Law (formerly § 59). (Naso v. Lafata, 4 N.Y.2d 585, 176 N.Y.S.2d 622, 152 N.E.2d 59; Rauch v. Jones, 4 N.Y.2d 592, 176 N.Y.S.2d 628, 152 N.E.2d 63.)

The latter holding may be rationalized as follows: Since the owner of the automobile, derivatively liable for the negligence of the driver, may sue that driver, eventually the latter, as a fellow employee, would be subjected to liability, contrary to the intent of the Workmen's Compensation statute. (Naso v. Lafata, supra, at p. 591, 176 N.Y.S.2d at p. 627, 152 N.E.2d at p. 62.) Secondly, statutory liability of an owner of an automobile is designed to provide a remedy where no other remedy is available, and such liability should not otherwise be applied. (Rauch v. Jones, supra, at p. 596, 176 N.Y.S.2d at pp. 630-631, 152 N.E.2d at pp. 64-65.)

An essential requirement for the application of the above rule is that the employee be injured in the course of his employment (Naso v. Lafata, supra, at p. 589, 176 N.Y.S.2d at p. 625, 152 N.E.2d at p. 61), which basic requirement, according to defendant, is present in the case at bar. The dominant philosophy in decisional law, particularly in workmen's compensation, is that when an employee is sent on his employer's business at a distance from his home, and is directed to remaidn in a particular locality, he 'is not expected to wait immobile, but may indulge in any reasonable activity at that place, and if he does so the risk inherent in such activity is an incident of his employment.' (Davis v. Newsweek Magazine, 305 N.Y. 20, 28, 110 N.E.2d 406, 409.) It has been held that the type of activity in which the plaintiff and his fellow employee driver were engaged when the car accident and injury occurred, is in 'the course of employment' and therefore compensable. (Matter of Daly v. State Insurance Fund, 284 App.Div. 174, 130 N.Y.S.2d 440, leave to appeal den. 307 N.Y. 940, 122 N.E.2d 336 [taking a drive for a breath of air after his work was completed and before returning to his hotel]; Matter of Gabunas v. Pan American Airways, 279 App.Div. 697, 108 N.Y.S.2d 372 [airline stewardess required to wait in Lisbon during enforced layover of assigned aircraft--injured while cycling]; Matter of Motto v. Cosmopolitan Tourist Co., 278 App.Div. 597, 101 N.Y.S.2d 873 [injured on boat while waiting for a fishing party to return]; Matter of Schneider v. United Whelan Drugstores, 284 App.Div. 1072, 135 N.Y.S.2d 875 [out of town employee drowned while awaiting return by plane]; Lewis v. Knappen Tippetta Abbett Eng. Co., 304 N.Y. 461, 108 N.E.2d 609 [engineer in foreign country killed on sightseeing trip...