Hennessy v. Walker

• Decision Date: 29 November 1938
• Citation: 279 N.Y. 94,17 N.E.2d 782
• Parties: HENNESSY v. WALKER et al. ROBERTSON v. WALKER et al. (two cases).
• Court: New York Court of Appeals Court of Appeals

279 N.Y. 94

17 N.E.2d 782

HENNESSY

v.WALKER et al.

ROBERTSON

v.WALKER et al. (two cases).

Court of Appeals of New York.

Nov. 29, 1938.

Actions by Genevieve Hennessy, as administratrix of the goods, chattels and credits of William Hennessy, deceased, David Robertson, by his guardian ad litem, Marie V. Robertson, and Ralph D. Robertson, respectively, against John H. Walker, the Niagara Freight Lines, Inc., and another to recover damages for the death of plaintiff administratrix' intestate and injuries to the other plaintiffs. From judgments entered on orders of the Appellate Division, 253 App.Div. 861, 3 N.Y.S.2d 889, unanimously affirming judgments of the Trial Term for plaintiffs, defendant Niagara Freight Lines, Inc., appeals.

Reversed as to appellant, and new trial granted.

CRANE, C. J., and LOUGHRAN, J., dissenting.Appeal from Supreme Court, Appellate Division, Third department.

Oscar J. Brown, of Syracuse, for appellant.

Edward W. Barrett, of Ballston Spa, for respondent Genevieve Hennessy.

Harry F. Whiton, of Troy, for respondents David and Ralph D. Robertson.

RIPPEY, Judge.

At the time of the accident, a semitrailer owned by appellant, Niagara Freight Lines, Inc., was being hauled by a truck owned by defendant Walker and operated over a public highway by his employee Peck. Through the negligence of Peck, a headon collision occurred between the truck and a Chevrolet automobile occupied by William Hennessy and David and Ralph Robertson, as a result of which Hennessy was killed and the two Robertsons injured. Judgments in favor of the administratrix of Hennessy and in favor of the two Robertsons for injuries causing the death of Hennessy and for injuries to the others due to the negligence of Peck were entered against Walker, against Peck, and against the Niagara Freight Lines, Inc. The latter appealed to the Appellate Division, where the judgments against it were affirmed. We granted permission to appeal to this court.

It appeared at the trial that the semitrailer, when at rest and unattached to a motor vehicle, had two dolly wheels under the front end and two wheels on the rear. After attachment to the tractor, the dolly wheels were raised and served no purpose in its subsequent operation. The tractor was formerly a Ford truck with four wheels, two on the front and two on the rear. The body had been reconstructed by Walker to make it suitable for use in connection with the hauling of semitrailers. The front end of the semitrailer rested on a fifth wheel on the rear end of the tractor and was attached to the latter by means of a kingpin. The tractor and semitrailer had a common braking system operated by the driver of the tractor. The semitrailer could not be operated by itself nor was the tractor designed to carry freight. The semitrailer, loaded with appellant's freight, was being towed by the tractor between the Syracuse terminal of appellant and Albany, New York, by direction of appellant and with its knowledge and consent.

There is no agreement or concession by the parties as to the nature of the business relationship between appellant, Walker and Peck. In the statement under rule 234 of the Rules of Civil Practice it is apparently assumed by appellant that Walker was an independent contractor, and such was the assumption of appellant on the argument. The character of the relationship was a sharply contested question of fact which should have been submitted to the jury. The trial judge seemed to consider it of minor importance, for he did not submit it to the jury. We cannot say that Walker was an independent contractor or that he or Peck was an agent of appellant and the rights and liabilities of appellant cannot in this court be predicated upon either of those relationships. The only question left for us to decide is whether the owner of a semitrailer attached to a separately owned tractor is liable for the negligent operation of the tractor under section 59 of the Vehicle and Traffic Law (Consol.Laws, ch. 71) without regard to the legal relationship existing between the owners of the two vehicles or between the owner of the semitrailer and the driver of the truck or the control or direction over the operation of the motor vehicle which the owner of the semitrailer may or may not have exercised. The trial court answered the question and charged, as matter of law, that it was liable. Said the court: ‘Now, gentlemen, there have been some discussions between the attorneys as to whose responsibility it is for the operation of the truck and semitrailer. You need not go into that, because the Court has decided that in as much as the truck was owned by Walker and operated by his man, and in as much as the semitrailer was operated by the Niagara Freight Lines, Incorporated, and was so attached to the truck as to make it one vehicle (the trailer could not run alone, it had only two wheels, it had to be hitched on to something else in order to operate at all), it was in my judgmenta three-truck vehicle. That is what it amounted to. It makes no difference whether it was hitched on to this truck or put on in such fashion that it could not be taken off. It was occupying the righway, and it was owned by two owners, and under the statute the owners of vehicles on the highway are responsible for their operation. This was a vehicle on the highway owned by these two owners; therefore, if you find in favor of the plaintiffs, your verdict will be against the two owners of the vehicle and against the driver thereof.’ To the charge an exception was taken. We think the charge necessarily presents reversible error.

Section 59 of the Vehicle and Traffic Law, so far as material, provides: ‘Every owner of a motor vehicle or motor cycle operated upon a public highway shall be liable and responsible for death or injuries to person or property resulting from negligence in the operation of such motor vehicle or motor cycle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner.’ It must be noted that the section does not embrace all types of vehicles within its coverage but relates only to motor vehicles and motorcycles. Except as liability for negligence has been extended by statute, with exceptions not here pertinent, a person is responsible only for his own torts. It must be presumed that the Legislature, in making a radical change in the rule of liability, would make its intent and purpose clear (Seligman v. Friedlander, 199 N.Y. 373, 92 N.E. 1047), and that it went no further than the mischief to be remedied required. Psota v. Long Island R. R. Co., 246 N.Y. 388, 393, 159 N.E. 180, 62 A.L.R. 1163. A motor vehicle and a motorcycle are each equipped with a motor, a power plant integral with the vehicle. Such a vehicle is a potential agent of destruction when operated by the owner or by others. Prior to the statute under consideration and its predecessors, liability of the owner of such a vehicle could be predicated only upon the negligence of the owner or that of his agent when acting within the scope of his employment under established rules of agency. (Van Blaricom v. Dodgson, 220 N.Y. 111, 115 N.E. 443, L.R.A.1917F, 363) or of that of a servant under the rules applicable to the relation of master and servant. Potts v. Pardee, 220 N.Y. 431, 435,116 N.E. 78, 8 A.L.R. 785. The intent and purpose of the statute and the change in the law was to extend his liability for the negligence of any one who legally uses or operates the motor vehicle or motorcycle in the business of the owner or otherwise with his permission, express or implied. Fluegel v. Coudert, 244 N.Y. 393, 155 N.E. 683. Trailers and semitrailers are vehicles within the meaning of the Vehicle and Traffic Law (§ 2, subd. 7) but they are not motor vehicles. The Legislature having defined and classified a trailer and a semitrailer as separate and distinct vehicles (§ 2, subds. 27 and 28), it is presumed that it would have referred to them by name had it intended to include them within the provisions of section 59. Obviously a trailer, as a separate unit, cannot be ‘ operated’ upon the highway or otherwise. It has no motive power of its own. It cannot be used or moved except by motive power extraneous to the vehicle itself.

In construing a particular statute, the courts must take into consideration all commands of the Legislature relating to the same subject-matter. Seligman v. Friedlander, supra. Upon examination of the various provisions of the Vehicle and Traffic Law, it is evident that the Legislature intended to and, in fact, did literally separately classify trailers and semitrailers and treat them differently than motorcycles and motor vehicles for all the purposes of the law. Prior to 1932, the Legislature defined a ‘trailer’ as a ‘vehicle’ for the purposes of the Vehicle and Traffic Law when it said (§ 2, subd. 7) that the term ‘vehicle’ should include ‘every kind of conveyance, except a baby carriage, a street surface car and a push cart.’ It excluded a trailer from the term ‘motor vehicle’ because it limited that class to those vehicles ‘propelled by any power other than muscular power’ (subd. 8). A trailer is not ‘ propelled;’ it is drawn. The distinction between a ‘trailer’ and a ‘motor vehicle’ is made in other sections of the law. Section 11, subdivision 1, before amendment by chapter 338 of the Laws of 1932, provided separately for registration of a ‘motor vehicle’ and for registration of a ‘vehicle commonly known as a ‘trailer,’ for the transportation of goods, wares and merchandise, not propelledby its own power, to be drawn on the public highways by a motor vehicle operated thereon.' The definition of a trailer was transferred by the amendment above mentioned to subdivision 27 of section 2. Subdivisions 2, 3 and 6, of section 11 have to do exclusively with the registration of and registration fees for motor vehicles, while subdivision 8...