Rome Cable Corp. v. Tanney
| Decision Date | 11 June 1964 |
| Citation | 21 A.D.2d 342,250 N.Y.S.2d 304 |
| Parties | ROME CABLE CORPORATION, Appellant, v. Donald TANNEY, Defendant. Donald TANNEY, Third-Party Plaintiff-Respondent-Appeallant, v. ASSOCIATED TRANSPORT, INC., Third-Party Defendant-Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Copal Mintz, New York City, for third party defendant appellant respondent.
Ronald C. Powers, Rome, for defendant, and third party plaintiff respondent appellant (William J. Powers, Jr., Rome, of counsel).
Kernan & Kernan, Utica, for plaintiff appellant (Willis D. Morgan, Utica, of counsel).
Before WILLIAMS, P. J., and BASTOW, GOLDMAN, HENRY and NOONAN, JJ.
This is an appeal by Associated Transport, Inc. (hereafter 'Associated') from that portion of a judgment which awards the third party plaintiff money damages. Tanney and Rome Cable Corporation (hereinafter 'Rome') also appeal from the same portion of the judgment only because of inadequacy. 'Rome' also appeals from that portion of the judgment which awards attorneys' fees to Tanney payable from the amount awarded against 'Associated' in his favor.
On August 18, 1955 Nicholas Frattasio, an employee of 'Associated', was injured when struck by a fork lift truck owned by 'Rome' and operated by its employee Tanney. The accident occurred while Tanney was assisting in the holding of trucks owned by 'Associated'. Thereafter on April 13, 1956, the liability carrier for 'Rome' settled the claim of Frattasio for personal injuries by paying him $16,750.00 A loan receipt in this amount was executed by 'Rome' in favor of its carrier.
On July 12, 1958 'Rome' commenced an action against Tanney to recover the amount paid to Frattasio in settlement of his claim. 'Associated', a foreign corporation and over the road hauler, had on file two bonds, one with the Commissioner of Motor Vehicles and the other with the Public Service Commission. Each bond was indemnified to a stated amount by Seaboard Surety Company. In essence each bond was designed to protect against damages resulting from negligence in the use or operation in this State of vehicles of 'Associated'. Tanney upon being sued by 'Rome' called upon 'Associated' to defend which it refused to do disclaiming any responsibility. Tanney then commenced a third party action against 'Associated' to recover the amount, if any, 'Rome' recovered against him together with the costs and expenses of his defense.
The action of 'Rome' against Tanney is based on the theory that Tanney was the primary, active wrongdoer and 'Rome' was only vicariously liable to Frattasio as Tanney's employer and thus secondarily and passively negligent. To succeed in this action 'Rome' is required to prove by a fair preponderance of the evidence (1) that Tanney was negligent in causing the accident resulting in injury to Frattasio, (2) that Frattasio was not guilty of contributory negligence to any extent or degree, (3) that the settlement made with Frattasio was fair and reasonable, and (4) that its negligence was secondary and passive. Each of these elements was put at issue by Tanney's answer.
The issues were tried by the Court without a jury. There were no formal findings of fact or conclusions of law but in lieu thereof, the Court rendered a decision and opinion. From this decision it cannot be determined whether the Court reached the conclusion that the negligence of Tanney was conceded because of settlement of the Frattasio claim or that it was established by the proof. Whichever road was used was error. Certainly the ex parte settlement by 'Rome's' carrier was no concession by Tanney of his negligence. If the finding of negligence is bottomed on the proof as to the manner in which the accident happened, it is against the weight of evidence. As to the issues of Tanney's negligence and Frattasio's freedom from contributory negligence, this case was cavalierly tried to say the least. Frattasio's testimony as to how...
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