OPINION OF THE COURT
Section 19 of the Volunteer Firemen’s Benefit Law does not bar an action by an injured fireman plaintiff who has accepted compensation benefits against defendant fellow firemen whose injury-causing acts were outside the scope of defendants’ employment. The order of the Appellate Division affirming dismissal of plaintiff Maines’ complaint should, therefore, be reversed insofar as appealed from,
The papers on defendants’ motions to dismiss establish that on June 12, 1975 plaintiff attended the regular monthly meeting of the Cronomer Valley Fire Department at the company meeting hall, during part of which he and another junior fireman were inducted as senior members. After the meeting formally ended plaintiff remained in the building with others for at least an hour to watch a game of cards. Another group of volunteer firemen left the meeting hall and went to a different building on the premises, referred to as the truckhouse. At about 11:30 p.m. one of the firemen returned from the truckhouse and told plaintiff to come with him because one of the members wanted to speak with him. On their way to the truckhouse, Maines, who had been hazed when he was inducted to junior membership and thus suspected that some type of horseplay awaited him, told the other fireman that "if they were going to do any fooling around not to do it today because [he had his] good clothes on.” No response was made. Immediately upon entering the
The fire department chief filed notice of the accident with the Workers’ Compensation Board. Though plaintiff did not attend the first hearing held by the board, he ultimately did attend at least one later hearing and was awarded and accepted benefits in the amount of $8,332 for the injuries sustained. The decision stated simply that claimant "sustained injury to his left hand in the course of firematic [sic] duties.”
Whether compensation is plaintiffs exclusive remedy turns on the interpretation of sections 19 and 20 of the Volunteer Firemen’s Benefit Law and of related sections of the Workers’ Compensation Law. Section 19 of the former law provides in relevant part that: "The benefits provided by this chapter shall be the exclusive remedy of a volunteer fireman * * * for * * * injury * * * in the line of duty * * * as against * * * (3) any person or agency acting under governmental or statutory authority in furtherance of the duties or activities in relation to which any such injury resulted” and section 20, which is entitled "Other remedies of volunteer firemen; subrogation,” states that: "The provisions of section twenty-nine of the workmen’s compensation law to the extent that such provisions are not inconsistent with the provisions of this chapter, shall be applicable as fully as if set forth in this chapter.” Section 29 of the Workers’ Compensation Law provides, so far as here relevant, in subdivision 1 that "If an employee entitled to compensation under this chapter be
Viewed solely on the basis of the words used, section 29 of the Workers’ Compensation Law, which turns on whether plaintiff and defendant were "in the same employ,” gives a coworker greater protection than does section 19 of the firemen’s law, which protects only a person acting "in furtherance of the duties or activities in relation to which” the injury resulted, for our decisions have long recognized that an employee may be within the course of employment (and thus in "the same employ”) even though not acting strictly in furtherance of his duties or his employer’s objectives (see, generally, 1A Larson, Workmen’s Compensation Law, §§ 20-23). On its wording section 19 affords no basis for dismissal of the complaint, for a jury could find, there being evidence (both in the disciplining of defendant firemen and in testimony of individual witnesses that such initiation or hazing activities were not an accepted practice in the fire department) that in fact defendants were not acting "in furtherance of the duties or activities” in relation to which plaintiff’s injuries resulted (Matter of Ognibene v Rochester Mfg. Co.,
We prefer not to predicate our ruling on the difference in wording between the two laws, however, because the Memorandum of the Joint Legislative Committee on Fire Laws which accompanied the bill which became the Volunteer Firemen’s Benefit Law (NY Legis Doc, 1956, No. 45, reprinted at McKinney’s Cons Laws of NY, Book 63B, p 17) contains language suggesting that section 19 was intended to follow the exclusivity rule of the Workers’ Compensation Law (NY Legis
That plaintiff was "in line of duty” at the time he was summoned to the truckhouse is not open to question. Section 5 of the Volunteer Firemen’s Benefit Law includes within the "duties and activities” for which benefits are to be paid "attending or working at meetings of his fire department” (subd 1, par f), and the frequent holding of this and other courts has been that the interpretation of such a provision must not be restricted to the exact hours of the event in question, but should be reasonably, and sometimes liberally, construed in reference to the particular factual context (Wright v Day,
But the words "in the same employ” as used in the Workers’ Compensation Law are not satisfied simply because both plaintiff and defendant have the same employer; a defendant, to have the protection of the exclusivity provision, must himself have been acting within the scope of his employment and not have been engaged in a willful or intentional tort. Though the cases cited by the courts below (Doca v Federal Stevedoring Co.,
The policy considerations involved in the two situations differ greatly (see, generally, 2A Larson, Workmen’s Compensation Law, §§ 71, 72). While compensation law is designed to insure that an employee injured in course of employment will be made whole and to protect a coemployee who, acting within the scope of his employment caused the injury, it has not protected the coemployee, even though the injured employee has accepted compensation benefits, when the coemployee was not acting within the scope of his employment at the time he inflicted the injury (D’Agostino v Wagenaar,
The facts of the D’Agostino case are illustrative. There plaintiff was employed as a gardener at a country club and was engaged in mowing grass near the curb of a driveway on the club premises when injured. Defendant was employed by the club as a night watchman at a wage which included room and board. Defendant’s hours were from 10 p.m. to 7:30 a.m. The accident occurred at 2 p.m. While defendant was driving his private automobile, kept on the premises with the club’s permission, on a personal errand, he ran off the driveway into plaintiff. Defendant’s motion to set aside the jury’s verdict for plaintiff and dismiss plaintiff’s negligence complaint, because barred by the exclusivity provision of subdivision 6 of section 29 of the Workers’ Compensation Law, was denied on the ground that defendant was not within the scope of his employment at the time of injury and, therefore, the parties were not "in the same employ.”
In the instant case, defendants had so far departed from the "duties and activities” of their positions as volunteer firemen
A further basis for our conclusion exists in that the complaint liberally construed may be interpreted as alleging that the individual defendants in throwing plaintiff into the dumpster committed an intentional assault upon him. While the complaint alleges negligence and carelessness, it also charges that defendants "in concert with one another * * * caused the plaintiff to be physically restrained,” recklessly "failed to discontinue their actions upon plaintiff’s resistance, requests and cries,” and "used physical force on the plaintiff for no legitimate or lawful purpose.” As the First Department held in Mazarredo v Levine (
"Assuming, however, that the plaintiff was not the aggressor and that the assault arose out of a quarrel between coemployees relating to matters connected with the employment so as to make the plaintiff’s injuries compensable as an industrial accident insofar as the employer is concerned, we find nothing in the statute that requires us to construe it as affording to the perpetrator of the assault a defense based on the exclusive remedy of compensation provided for one injured by the negligence or wrong of another in the same employ (Workmen’s Compensation Law, § 29, subd. 6).
* * *
"The commission of an assault by one employee upon another in the course and arising out of the employment may properly be deemed accidental from the standpoint of the employer as an untoward event not expected or intended. The same, however, can hardly be said for the perpetrator of the assault. It seems unreasonable to suppose that the Legislature intended to give statutory protection in the form of immunity from suit for a deliberate and intentional wrongful act.”
(See Matter of Berenberg v Park Mem. Chapel,
In reaching our conclusion, we are not unmindful of the provisions of section 205-b of the General Municipal Law. That section did not bar a common-law action against a fellow fireman before enactment of the Volunteer Firemen’s Benefit Law (Ottman v Village of Rockville Centre,
For the foregoing reasons, the order of the Appellate Division should be reversed insofar as appealed from, with costs, and the motions of the individual defendants for summary judgment should be denied.
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.
Order, insofar as appealed from, reversed, etc.
Notes
. The orders affirmed by the Appellate Division granted summary judgment to defendant fire department as well. Plaintiff on appeal to us has limited his argument to the contention that summary judgment was improperly granted the individual defendants.
. The complaint is technically defective in failing to allege that the individual defendants were not acting within the scope of their employment (Murray v City of New York,
. Note, however, that Pollini dealt not with the present issue but with whether the defendant, Hicksville Fire Department, was a "person or agency” within the meaning of subdivision 3 of section 19.