Sullivan v. Christiensen
| Decision Date | 08 September 1959 |
| Citation | 191 N.Y.S.2d 625 |
| Parties | Kevin SULLIVAN, an infant by his Guardian ad Litem, Catherine Sullivan, Plaintiffs, v. Edward CHRISTIENSEN and Plainview Motors, Inc., Defendants. |
| Court | New York Supreme Court |
Martin M. Kolbrener, New York City, for plaintiffs.
Jerome Scharoff, Mineola, for defendant Plainview Motors, Inc.
Hartsell, Harrington & Jacobs, New York City, for defendant Edward Christiensen.
In this action for personal injury to the infant plaintiff, the corporate defendant pleaded as a separate defense that the driver of its car, for whose negligence it would be required to respond, is the father of the infant plaintiff and that, therefore, plaintiff can only recover if it shows wilful and wanton conduct. Plaintiff's motion to strike this defense is granted, on the authority of Schubert v. August Schubert Wagon Co., 249 N.Y. 253, 164 N.E. 42, 64 A.L.R. 293, and Schomber v. Tait, 207 Misc. 328, 140 N.Y.S.2d 746. See also Rauch v. Jones, 4 N.Y.2d 592, 596, 176 N.Y.S.2d 628. Those cases make clear that such a defense is personal to the father and that the master (corporation) is 'under a distinct and independent liability' [249 N.Y. 253, 164 N.E. 43] and may be held even though the servant (father) has a personal defense. Nor is it relevant that the corporation may, if held liable, have a right to indemnification by the father, for the father's liability for such indemnity is not to his son and does not violate the policy behind the rule of parental immunity. Schubert v. August Schubert Wagon Co., supra; see Westchester Lighting Co. v. Westchester County Small Estates Corp., 278 N.Y. 175, 15 N.E.2d 567; Rozell v. Rozell, 281 N.Y. 106, 22 N.E.2d 254, 123 A.L.R. 1015. Further, insurance coverage is now required, and that coverage protects both the corporation and the parent-employee. It is therefore improbable that domestic transquility will be disturbed, at least not unless a recovery in excess of policy limits is had. If there were any conflict between the two, the more recent legislative policy requiring insurance in order to provide compensation for negligent automobile injury would have to be upheld against the older, judge-made, and somewhat outmoded policy concerning domestic tranquility. Rozell v. Rozell, supra. Finally, there is no indication that plaintiff's father is not cooperating in defense of the action or is acting collusively. The father's interest may, of course,...
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...City of Philadelphia, 112 Pa.Super. 50, 170 A. 871; Winnick v. Kupperman Constr. Co., 29 A.D.2d 261, 287 N.Y.S.2d 329; Sullivan v. Christiensen, Sup., 191 N.Y.S.2d 625). Kemp v. Rockland Leasing, Inc., 51 Misc.2d 1073, 274 N.Y.S.2d 952, sustained a suit by an infant passenger against the ow......
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Kemp v. Rockland Leasing, Inc.
...exempts the husband from liability for the damage. Others may not hide behind the skirts of his immunity.' Similarly in Sullivan v. Christiensen, Sup., 191 N.Y.S.2d 625, a corporate defendant pleaded as a separate defense that the driver of its car, for whose negligence it would be required......
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Winnick v. Kupperman Const. Co.
...skirts of his immunity.' The same principle was invoked where an infant was injured due to the negligence of a parent (Sullivan v. Christiensen, Sup., 191 N.Y.S.2d 625; Schomber v. Tait, 207 Misc. 328, 140 N.Y.S.2d 746, In Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 174 N.E.2d 718,......