Naso v. Lafata

• Decision Date: 20 January 1958
• Parties: Joseph NASO, respondent, v. Salvatore LAFATA, Jr., appellant, and Salvatore Lafata, Sr., defendant.
• Court: New York Supreme Court — Appellate Division

Page 905

170 N.Y.S.2d 905

5 A.D.2d 786

Joseph NASO, respondent, v. Salvatore LAFATA, Jr., appellant, and Salvatore Lafata, Sr.,

defendant.

Supreme Court, Appellate Division, Second Department.

Jan. 20, 1958.

Peter J. Costigan, Hempstead, for appellant.

Joseph H. Gellman, Corona, for respondent.

Before WENZEL, Acting P. J., and BELDOCK, MURPHY, UGHETTA, and HALLINAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the appeal is from so much of a judgment entered after a jury trial as is in favor of respondent against appellant.

Judgment insofar as appealed from affirmed, with costs.

Respondent was a passenger in a motor vehicle owned by appellant and operated by defendant. Respondent and defendant were co-employees of a corporation of which appellant was president. Appellant was not present at the time and place of the collision of his vehicle with a parked car. Under this proof, appellant was neither respondent's employer nor his fellow employee insofar as the operation of the vehicle was concerned. The fellow-servant rule, immunizing an employee from suit by his fellow-employee (Workmen's Compensation Law, § 29, subd. 6), does not apply to the owner of the vehicle where the master's duty to transport the servant is performed by such owner acting on behalf of the master, even if the owner of the vehicle bears some relationship either to the driver or to the master (Puccio v. Carr, 177 Misc. 706, 31 N.Y.S.2d 805, affirmed 263 App.Div. 1042, 33 N.Y.S.2d 684; Goldwasser v. Ranieri, 2 Misc.2d 606, 151 N.Y.S.2d 170; Milone v. Bono, 8 Misc.2d 826, 162 N.Y.S.2d 1002). The driver's immunity from suit does not inure to the absent owner of the vehicle (cf. Schubert v. August Schubert Wagon Co., 249 N.Y. 253, 164 N.E. 42, 64 A.L.R. 293) since the latter's liability arises, not from his relationship to the driver or master, but as a statutory consequence of derivative liability imposed by the provisions of the vehicle and traffic statutes (cf. Baugh v. Rogers, 24 Cal.2d 200, 148 P.2d 633, 152 A.L.R. 1043; Elfeld v. Burkham Auto Renting Co., 299 N.Y. 336, 87 N.E.2d 285, 13 A.L.R.2d 370). The owner of the vehicle is thus to be treated as a third party whose liability is not eliminated by the provisions of the Workmen's Compensation Law even though the negligence of a fellow employee was a concurring proximate cause of plaintiff's injury (Caulfield v. Elmhurst Contracting Co., 268 App.Div. 661, 53 N.Y.S.2d 25, affirmed 294 N.Y. 803, 62 N.E.2d 237).

WENZEL, Acting P. J., and BELDOCK and HALLINAN, JJ., concur.

MURPHY and UGHETTA, Justices, dissent and vote to reverse the judgment and to dismiss the complaint, with the following memorandum:

While appellant was the owner of the automobile in which respondent was a passenger when the accident occurred, it is conceded that the car was being operated by a fellow employee in the business of a corporation, not a party to this action, and on respondent's consent the complaint was dismissed as to the operator on the ground that the provisions of subdivision 6 of section 29 of the Workmen's Compensation Law preclude recovery against the fellow employee. Appellant's freedom from actual negligence is likewise conceded. Nevertheless, it is contended here that appellant may be held liable as a statutory consequence of the derivative liability imposed by section 59 of the Vehicle and Traffic Law (which created a liability where none before existed). This overlooks the fact that the clear and explicit language of the Workmen's Compensation Law limits, under circumstances such as these, the injured employee's remedy to the...