Musco v. Conte

• Decision Date: 23 November 1964
• Citation: 254 N.Y.S.2d 589,22 A.D.2d 121
• Parties: Fanny MUSCO, as administratrix, etc., of Salvatore Musco, deceased, Plaintiff, v. John L. CONTE, Defendant and Third-Party Plaintiff-Appellant; X.R.C. Realty Corporation et al., Defendants; YONKERS GENERAL HOSPITAL, Third-Party Defendant-Respondent; Louis J. Fazio et al., Third-Party Defendants; 'Marry' B. Phillips, etc., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 589

254 N.Y.S.2d 589

22 A.D.2d 121

Fanny MUSCO, as administratrix, etc., of Salvatore Musco deceased, Plaintiff, v. John L. CONTE, Defendant and Third-Party Plaintiff-Appellant; X.R.C. Realty Corporation et al Defendants; YONKERS GENERAL HOSPITAL, Third-Party Defendant-Respondent; Louis J. Fazio et al., Third-Party Defendants; 'Marry' B. Phillips, etc., Third-Party Defendant-Respondent.

Supreme Court, Appellate Division, Second Department.

Nov. 23, 1964.

Geo. Franklyn Muth, Yonkers, for third-party plaintiff-appellant; John Preston Phillips, Yonkers, of counsel.

Mendes & Mount, New York City, for third-party defendant-respondent Yonkers General Hospital; Albert L. Bases and Lewis S. Sandler, New York City, of counsel.

Lester D. Cook, Rye, for third-party defendant-respondent Phillips.

Before UGHETTA, Acting P. J., and BRENNAN, HILL, RABIN and HOPKINS, JJ.

HOPKINS, Justice.

We deal here with the sufficiency of a third-party complaint on its face; hence, the allegations of the original complaint and the third-party complaint are read together and accepted as true (Dyer v. Broadway Central Bank, 252 N.Y. 430, 432, 169 N.E. 635, 636; Vaughan v. Globe Neon Sign Co., 10 A.D.2d 568, 195 N.Y.S.2d 420, affd. 8 N.Y.2d 776, 201 N.Y.S.2d 787, 168 N.E.2d 119).

The pleadings, thus considered, assert that on March 24, 1957 the defendant Conte parked his automobile in a lot owned by the X.R.C. Realty Corporation and maintained by Cross County Diner, Inc. ¹ Conte's automobile crossed over a wooden log which was placed as a backstop at the edge of the parking area, so that part of the automobile landed in a ditch or low ground, and part of the automobile remained on the parking area. Conte asked Salvatore Musco (plaintiff's intestate) to help him extricate the automobile; and, as Musco did so, his hand was caught between the log and the automobile through the negligence of Conte.

Musco suffered severe injuries to his hand. At the Yonkers General Hospital an anesthetic was administered, and an operation was performed. The anesthetic was so negligently administered (and without a proper diagnosis of Musco's general condition) that Musco died. The third-party defendant Phillips was one of the persons who participated in the negligence causing Musco's death.

The plaintiff sued Conte and the owner and operator of the parking area for damages as a result of the wrongful death of her intestate. Her complaint claimed negligence by Conte in his operation and control of his automobile, and negligence by the owner and operator of the parking area through the improper location of the log and the dangerous condition of the premises. After joinder of issue, the action was noticed for trial, finally appearing on the day calendar.

Nearly seven years after the accident and five years after the commencement of the action, the defendant Conte served a third-party complaint on Yonkers General Hospital and Phillips, claiming that their negligence in performing the operation on Musco was the cause of his death. Both of said third-party defendants separately moved to dismiss the third-party complaint for patent insufficiency, and Conte appeals from the orders granting such motions.

Three reasons are advanced for affirmance of the orders: (1) an active tortfeasor may not implead another tortfeasor; (2) the Statute of Limitations has expired, foreclosing an action by the plaintiff against the third-party defendants, and Conte cannot be in a more favorable position than the plaintiff; and (3) Conte is guilty of laches.

At common law the joint and several liability imposed on joint tortfeasors was indivisible, and any one of the joint tortfeasors was liable to the injured party for the entire damage (1 Harper & James, The Law of Torts, § 10.1, pp. 693-695). As a corollary to this rule, the injured party was said to control the source of the payment, so that despite the more liberal code provisions relating to joinder of parties (Civil Practice Act, §§ 193, 212; CPLR §§ 1001, 1002), one joint tortfeasor sued alone by the injured party could not bring in as a party defendant to the action a second tortfeasor jointly liable and culpable for the injury (cf. Fox v. Western New York Motor Lines, Inc., 257 N.Y. 305, 308-309, 178 N.E. 289, 290, 78 A.L.R. 578).

No doubt, the common-law doctrine was aimed at deterring the commission of a single wrongful act by the concert of several persons who were proceeding in unison. As was said in Peck v. Ellis, 2 Johns.Ch. 130 , 137:

'Public policy speaks loudly against it. There would be no safety to property if a large combination of trespassers were entitled to the assistance of Courts of justice in the apportionment of the damage. The knowledge that each individual is responsible for the whole, constitutes the great check.'

Nevertheless, apportionment of the damage was recognized, even at some hardship to the injured party who was compelled to establish the extent of the damage caused by each tortfeasor, where the whole injury arose from concurrent but separate acts of the tortfeasors contributing to the end result. Typically, this qualification of the rule was applied with respect to injuries to land (cf. Chipman v. Palmer, 77 N.Y. 51, 53-54; City of Mansfield v. Bristor, 76 Ohio St. 270, 81 N.E. 631, 10 L.R.A.,N.S., 806).

Moreover, the right of indemnity is enforced in favor of one tortfeasor against another jointly liable, where the degrees of culpability are unequal and the second tortfeasor, in equity and justice, should bear the burden. (2 Williston on Contracts [3rd ed.] § 345, pp. 763-783).

We are presented on this appeal with a fact pattern which is sometimes confused with the classic type of joint torts when the injury occurred as a product of the acts of several wrongdoers in concert, or flowing from concurrent acts of several wrongdoers happening at the same time (cf. 1 Harper & James, Law of Torts, § 10.1, pp. 693-694). The original injury to Musco's hand was caused by the negligence of the defendants he sued, concurring at the same time; but that injury was merely the subject of the treatment through which his death occurred as a consequence of the negligence of the third-party defendants. In this sense, Conte and the third-party defendants are not joint tortfeasors; they are, rather, tortfeasors whose wrongs were successive and independent (Derby v. Prewitt, 12 N.Y.2d 100, 105-106, 236 N.Y.S.2d 953, 957-958, 187 N.E.2d 556, 559-560; Matter of Parchefsky v. Kroll Bros., 267 N.Y. 410, 413-414, 196 N.E. 308, 310-311, 98 A.L.R. 1387). Conte may be liable to the plaintiff for the damages arising from the ultimate injury (Milks v. McIver, 264 N.Y. 267, 270, 190 N.E. 487, 488), but his wrongful act was not concurrent with the negligence of the third-party defendants, and his culpability was, as alleged, of a lesser degree. Hence, the rule that the impleader of a third party will not lie at the instance of a tortfeasor in pari delicto fails of application (cf. Middleton v. City of New York, 300 N.Y. 732, 92 N.E.2d 312; McFall v. Compagnie Maritime Belge, 304 N.Y. 314, 318, 107 N.E.2d 463, 465).

The right of indemnity has been held available at the behest of a defendant whose wrongful act resulted in injury aggravated by the negligence of a treating physician (Clark v. Halstead, 276 App.Div. 17, 93 N.Y.S.2d 49; Rezza v. Isaacson, 13 Misc.2d 794, 178 N.Y.S.2d 481; Rizzo v. Steiner, 36 Misc.2d 701, 233 N.Y.S.2d 647; Primes v. Ross, Sup., 123 N.Y.S.2d 702; cf. Fisher v. Milwaukee Electric Ry. & Light Co., 173 Wis. 57, 180 N.W. 269). By this device, the plaintiff may still, as she chose here, recover damages from the defendants whom she originally elected to sue; but the jury may, under proper instructions and by special verdict, decide the proportions of the recovery to be borne by the defendant Conte and by the third-party defendants impleaded by Conte.

Thus, there...