178 N.E. 677 | NY | 1931
Horace De Camp had a home at 952 Fifth avenue, New York city, at Rye and at Old Forge, New York, at which places he maintained establishments with the help of numerous servants and employees. Margaret Fay, a young lady, twenty-two years of age, was employed by him as an upstairs chambermaid to take care of the rooms. Other servants did the cooking and the waiting at table. The defendant also had an automobile and a chauffeur used for domestic service, as distinguished from business employment.
On the 6th day of August, 1926, the help left the defendant's place at Rye to go to his camp at Old Forge, and were being driven there in defendant's car operated by his chauffeur, when at Cranesville an accident occurred, through the negligence of the chauffeur, causing injury to Miss Fay.
Although the employer had taken out workmen's compensation insurance to cover his domestic employees, failure to comply with certain provisions of the law made the act unenforceable. Miss Fay, therefore, elected to bring this action to recover at common law against her employer for the negligence of his chauffeur, and the question is whether she was at the time a fellow-servant with that employee.
Since Priestly v. Fowler (3 M. W. 1) and Farwell v.Boston Worcester Rail Road Corp. (4 Metc. 49), much has been written and many things decided about the fellow-servant rule. The underlying principle is that the plaintiff is precluded from recovery wherever the functions which he and the negligent co-employee were *410 discharging, although not identical or even similar in character, were yet such that the two servants were contributing directly to the common object of their common employer in that enterprise for which their services were engaged, or, to employ a terminology which is frequently found in the books, the injured servant's right to recover does not depend upon the fact that he may have been in a different department of the service from the delinquent. (4 Labatt on Master Servant [2d ed.], p. 4070.)
Both the chauffeur and the maid were engaged by the employer in maintaining the home and place of abode, the maid attending to her department of keeping the house in order, and the chauffeur in transporting the occupants to and from the house or from one home to the other. Both were performing work reasonably connected with the running and maintenance of the defendant's summer places in accordance with his tastes. Had the employer been carrying on a business in which he employed the chauffeur, and while so engaged in that business the chauffeur had run over or injured a domestic servant, we can see clearly that they would not be fellow-servants.
The plaintiff had not ceased her employment or terminated her duties. She was the upstairs maid at Rye and was to be the maid at Old Forge. To get there she was being transported in her employer's car by another employee of his. The risks connected with such transportation in order to perform her duties and to continue her daily tasks were reasonably to be anticipated and considered when entering his employ.
Such we find to be the ruling in Erjauschek v. Kramer
(
The housekeeper has been considered a fellow-servant with the son of her employer engaged in carrying coal (Waxham v. Fink,
In McGuirk v. Shattuck (
The facts vary in every case, but within the principle to which the decisions have attempted to adhere, we think the maid in this case and the chauffeur were fellow-servants at the time of the accident, and that the plaintiff, under *412 this common-law rule, now firmly established in the law, cannot recover.
The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.
CARDOZO, Ch. J., POUND, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.
Judgments reversed, etc.
