Rauch v. Jones
| Decision Date | 25 June 1958 |
| Citation | 152 N.E.2d 63,4 N.Y.2d 592,176 N.Y.S.2d 628 |
| Parties | , 152 N.E.2d 63 Kenneth RAUCH, Appellant, v. Ronald G. JONES, Defendant, and Alexander J. Smith, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
The following question was certified: 'Is the complete defense set forth in paragraphs 6 to 11, inclusive, of the respondent's answer sufficient in law?'
John Lo Pinto, Ithaca, for appellant.
Charles B. Swartwood and George A. O'Hanlon, Elmira, for respondent.
William L. Shumate, New York City, for the Hertz Corp., amicus curiae, in support of respondent's position.
The sole issue presented on this appeal is the sufficiency of a complete defense set forth in respondent's answer which alleges in substance that plaintiff, a passenger in a tractor-trailer and a fellow employee of the operator of the vehicle, is barred by the provisions of the Workmen's Compensation Law, Consol.Laws, c. 67, from recovering damages in an action in negligence against the owner of the trailer for personal injuries sustained in an accident occurring in the course of employment.
Liability has been imposed by statute upon the owner of a motor vehicle for the negligence of any person operating the vehicle upon a public highway with the express or implied permission of the owner (Vehicle and Traffic Law, Consol.Laws, c. 71, § 59). A similar liability has been imposed jointly on the separate owners of a tractor and a trailer (Vehicle and Traffic Law, § 59-a). Prior to the amendment of the Workmen's Compensation Law (), the owner of a vehicle was liable even though he was a fellow employee. Judson v. Fielding, 227 App.Div. 430, 237 N.Y.S. 348, affirmed 253 N.Y. 596, 171 N.E. 798. Now, of course an employee injured through the tortious acts of a coemployee occurring within the course of the common employment cannot sue the coemployee in a direct action even though the coemployee is the owner of the vehicle. Liston v. Hicks, 243 App.Div. 159, 277 N.Y.S. 19, affirmed 269 N.Y. 535, 199 N.E. 523. The question is whether a direct action against the owner of the vehicle who is not an employer or fellow employee has been barred by the enactment of subdivision 6 of section 29 of the Workmen's Compensation Law () which provides that: 'The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, or in the case of death his dependents, when such employee is injured or killed by the negligence or wrong of another in the same employ.'
The appellant holds the view that the Legislature intended to make compensation the exclusive remedy only to the extent that it would bar an action directly against the negligent employee and was not meant to grant immunity to the owner of the the vehicle. A like view has been expressed in recent decisions in this State (Naso v. Lafata, 5 A.D.2d 786, 170 N.Y.S.2d 905, 4 N.Y.2d 585, 176 N.Y.S.2d 622; Fabrizio v. Fader, 5 A.D.2d 884, 172 N.Y.S.2d 858). There are other decisions and dicta to the same effect (Hartquist v. Tamiami Trailer Tours, 139 Fla. 328, 190 So. 533; Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530; Baugh v. Rogers, 24 Cal.2d 200, 148 P.2d 633, 152 A.L.R. 1043), though there are others to the contrary (Roberts v. Gagnon, 1 A.D.2d 297, 149 N.Y.S.2d 743; Schwartz v. Forty-Second Street, Manhattenville & St. Nicholas Avenue Ry. Co., 175 Misc. 49, 22 N.Y.S.2d 752). The subject has not before been considered in this court.
We think the purpose of the cited sections of the Vehicle and Traffic Law was to create a remedy for losses which an injured person had been subjected to in a class of where no right to relief existed. But where there is a specific remedy for a wrong, a derivative liability imposed by a statute does not attach inasmuch as provision for full redress for the losses suffered as a consequence of the wrong had been made. It is true that the compensation statute 'leaves untouched 'the duties and liabilities of wrongdoers outside of the relation which it regulates" (Caulfield v. Elmhurst Contracting Co., 268 App.Div. 661, 664, 53 N.Y.S.2d 25, 28, affirmed 294 N.Y. 803, 62 N.E.2d 237). Venertheless, 'Fairly construed, it applies * * * where the negligence of a fellow employee was the sole proximate cause of the injury or death' (Caulfield v. Elmhurst Contracting Co., supra, 268 App.Div. at page 665, 53 N.Y.S.2d at page 29). As the only negligence alleged in the amended complaint consists of negligent acts and omissions ascribed to the operator of the vehicle, plaintiff clearly seeks...
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