Wright v. Day

• Decision Date: 08 April 1970
• Citation: 309 N.Y.S.2d 940,26 N.Y.2d 905
• Parties: , 258 N.E.2d 221 Charles H. WRIGHT, Appellant, v. John DAY, Jr., Respondent. Clyde JOHNSON, Appellant, v. John DAY, Jr., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 940

309 N.Y.S.2d 940

26 N.Y.2d 905, 258 N.E.2d 221

Charles H. WRIGHT, Appellant, v. John DAY, Jr., Respondent.

Clyde JOHNSON, Appellant, v. John DAY, Jr., Respondent.

Court of Appeals of New York.

April 8, 1970.

Appeal from the Supreme Court, Appellate Division, Third Judicial Department, 29 A.D.2d 823, 287 N.Y.S.2d 337.

Action was brought against volunteer firemen by coemployees who were passengers in his automobile which went off the road. The evidence at trial disclosed that the firemen had participated in a hose contest in a nearby town and were commencing to return home in defendant's automobile. There was evidence that while defendant and the coemployees were at an inn on the way back they undertook to drive a truck owned by another, but that the delivery of truck was almost immediately abandoned when truck developed mechanical troubles and at the time of accident the defendant and coemployees had resumed their homeward journey in same manner and on same highway as they would have been if the abortive delivery of truck had never been undertaken.

The Supreme Court, Chenango County, entered judgments on jury verdicts in favor of the passengers and the defendant appealed.

The Appellate Division reversed and dismissed the complaint and the passengers appealed.

Order affirmed, without costs, on the ground that the record, as matter of law, established that the plaintiffs had not deviated from their line of duty (Volunteer Firemen's Benefit Law, Consol.Laws, c. 64--A, § 5, subd. 1, par. i) and that their exclusive remedy is under the Volunteer Firemen's Benefit Law ( § 19).

All concur except GIBSON, J., taking no part.