Naso v. Lafata
| Decision Date | 25 June 1958 |
| Citation | 176 N.Y.S.2d 622,152 N.E.2d 59,4 N.Y.2d 585 |
| Parties | , 152 N.E.2d 59 Joseph NASO, Respondent, v. Salvatore LAFATA, Jr., Appellant, et al., Defendant. |
| Court | New York Court of Appeals Court of Appeals |
Peter J. Costigan and Earl J. Nettleton, Hempstead, for appellant.
Joseph H. Gellman, Corona, for respondent.
Plaintiff brought this personal injury action against Salvatore Lafata, Jr., and Salvatore Lafata, Sr., for injuries sustained in an automobile accident, alleging that the automobile, in which plaintiff was a passenger, was owned by Lafata, Jr., and operated by Lafata, Sr., with the permission of Lafata, Jr. Defendants answered demanding a dismissal of the complaint upon the ground that the plaintiff's only remedy under the circumstances was that provided for under the Workmen's Compensation Law, Consol.Laws, c. 67.
At the commencement of the trial the following matters were stipulated:
(1) that when the accident occurred plaintiff was an employee of Lafata Construction Corporation;
(2) that at the time of the accident plaintiff, a passenger in an automobile owned by Lafata, Jr., president of Lafata Construction Corporation, was being driven home pursuant to the contract of employment calling for the employer to furnish transportation to and from work;
(3) that at the time of the accident Lafata, Sr., was a coemployee of plaintiff, and that the accident occurred while the plaintiff and his coemployee, the driver, were acting in the course of their employment;
(4) that the amount of the damages, if any, was $9,500.
At the end of plaintiff's case, plaintiff stipulated that a claim was presented on plaintiff's behalf for workmen's compensation benefits and an award was made and duly paid to him. Plaintiff also consented to the dismissal of the cause of action as to Lafata, Sr., upon the ground that his claim as to Lafata, Sr., was barred by section 29 of the Workmen's Compensation Law due to the fact that the accident and consequent injury was caused by the negligence of a coemployee (Lafata, Sr.) at a time when both the injured employee and the employee causing the injury were acting in the course of their employment. Lafata, Jr., made a motion for the same relief but decision on that motion was reserved. After Lafata, Jr., had presented his evidence the case was submitted to the jury and the jury returned a unanimous verdict in favor of the plaintiff. Lafata, Jr., appealed to the Appellate Division, Second Department, from the judgment of the trial court. The Appellate Division affirmed, by a divided court, and the present appeal to this court by Lafata, Jr., is as of right (Civil Practice Act, § 588, subd. 1, par. (b), cl. (i)).
The accident with which we are concerned took place on September 12, 1952 on Northern Boulevard about 400 feet east of Summer Street, Great Neck, New York. The Lafata vehicle was traveling on the extreme right lane of the four-lane highway, on the concrete. Exactly what happened is not free from doubt, but there is no doubt that the Lafata automobile collided with an automobile owned by one Roger Mullaney which was parked on a dirt shoulder about four or five feet from the traveled portion of the highway. The owner of the vehicle, Lafata, Jr., was not present at the time and place of the collision. There were rival explanations as to why the vehicle left the road, but a review of the record satisfies us that it contains sufficient evidence to warrant a jury's finding negligence on the part of the driver and freedom from contributory negligence on the part of the plaintiff. Accordingly, the only issue remaining is whether or not subdivision 6 of section 29 of the Workmen's Compensation Law precludes plaintiff from maintaining an action, under section 59 of the Vehicle and Traffic Law, Consol.Laws, c. 71, against the owner of a motor vehicle for personal injuries due to the negligent operation of the said motor vehicle by one other than the owner who, at the time of the accident, is a coemployee of the plaintiff passenger and while both the coemployee and the plaintiff passenger are acting in the course of their employment. In our judgment it does. Subdivision 6 of section 29 of the Workmen's Compensation Law provides: (Emphasis supplied.)
Reading this action in conjunction with the other provisions of the Workmen's Compensation Law, two elements emerge as necessary ingredients in order to bring into operation subdivision 6 of section 29. These two elements are: (1) that an employee be injured in the course of his employment; and (2) that his injury be the result of the negligence or wrong of a fellow employee. When these elements are present, subdivision 6 of section 29 of the Workmen's Compensation Law makes workmen's compensation the only remedy available to the injured employee. That such a result was intended by the Legislature is made manifest from the use of the expression 'exclusive remedy'. No more unequivocal expression could have been used by the Legislature as indicative of an intendment on its part to limit to workmen's compensation the recovery available to an employee injured under the circumstances enumerated above. Both sides agreed indeed, it was so stipulated that these elements are present in the case before us. However, plaintiff claimed that the present case is taken out of the operation of subdivision 6 of section 29 by virtue of section 59 of the Vehicle and Traffic Law. We cannot agree.
The purpose motivating the passage of section 59 of the Vehicle and Traffic Law was to change the common-law rule by making the owner of an automobile liable for the negligence of a person legally operating the vehicle with the permission, express or implied, of the owner (Mills v. Gabriel, 259 App.Div. 60, 61, 18 N.Y.S.2d 78, 80, affirmed 284 N.Y. 755, 31 N.E.2d 512). The liability of the owner in a section 59 situation is at best vicarious depending, as it does, not on any fault on the owner's part but purely on the statute (Traub v. Dinzaler, 309 N.Y. 395, 400, 131 N.E.2d 564, 566; Gochee v. Wagner, 257 N.Y. 344, 347, 178 N.E. 553). Our court in the Traub case, recognizing that the negligence of an owner, sued under section 59 of the Vehicle and Traffic Law and not present in...
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...under workmen's compensation absolves the employer of any liability under the wrongful death statute. Naso v. Lafata, 4 N.Y.2d 585, 589, 176 N.Y.S.2d 622, 625, 152 N.E. 2d 59, 61 (1958). See also Nulle v. Hardman, Peck & Co., 185 App.Div. 351, 173 N.Y.S. 236 (1st Dep't 1918); De Guiseppe v.......
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