4 N.Y.2d 585 | NY | 1958
Plaintiff brought this personal injury action against Salvatore Lafata, Jr., and Salvatore Lafata, Sr., for injuries sustained in an automobile accident, alleging that the automobile, in which plaintiff was a passenger, was owned by Lafata, Jr., and operated by Lafata, Sr., with the permission of Lafata, Jr. Defendants answered demanding a dismissal of the complaint upon the ground that the plaintiff’s only remedy under the circumstances was that provided for under the Workmen’s Compensation Law.
At the commencement of the trial the following matters were stipulated:
(2) that at the time of the accident plaintiff, a passenger in an automobile owned by Lafata, Jr., president of Lafata Construction Corporation, was being driven home pursuant to the contract of employment calling for the employer to furnish transportation to and from work;
(3) that at the time of the accident Lafata, Sr., was a coemployee of plaintiff, and that the accident occurred while the plaintiff and his coemployee, the driver, were acting in the course of their employment;
(4) that the amount of the damages, if any, was $9,500.
At the end of plaintiff’s case, plaintiff stipulated that a claim was presented on plaintiff’s behalf for Avorkmen’s compensation benefits and an award was made and duly paid to him. Plaintiff also consented to the dismissal of the cause of action as to Lafata, Sr., upon the ground that his claim as to Lafata, Sr., Avas barred by section 29 of the Workmen’s Compensation Law due to the fact that the accident and consequent injury was caused by the negligence of a coemployee (Lafata, Sr.) at a time when both the injured employee and the employee causing the injury were acting in the course of their employment. Lafata, Jr., made a motion for the same relief but decision on that motion was reserved. After Lafata, Jr., had presented his evidence the case was submitted to the jury and the jury returned a unanimous verdict in favor of the plaintiff. Lafata, Jr., appealed to the Appellate Division, Second Department, from the judgment of the trial court. The Appellate Division affirmed, by a diAdded court, and the present appeal to this court by Lafata, Jr., is as of right (Civ. Prae. Act, § 588, subd. 1, par. [b], cl [i]).
The accident with which we are concerned took placed on September 12, 1952 on Northern Boulevard about 400 feet east of Summer Street, Great Neck, New York. The Lafata vehicle was traveling on the extreme right lane of the four-lane highway, on the concrete. Exactly Avhat happened is not free from doubt, but there is no doubt that the Lafata automobile collided Avith an automobile owned by one Boger Mullaney which was parked on a dirt shoulder about four or five feet from the traveled portion of the highway. The owner of the vehicle, Lafata, Jr., was
Reading this action in conjunction with the other provisions of the Workmen’s Compensation Law, two elements emerge as necessary ingredients in order to bring into operation subdivision 6 of section 29. These two elements are: (1) that an employee be injured in the course of his employment; and (2) that his injury be the result of the negligence or wrong of a fellow employee. When these elements are present, subdivision 6 of section 29 of the Workmen’s Compensation Law makes workmen’s compensation the only remedy available to the injured employee. That such a result was intended by the Legislature is made manifest from the use of the expression “ exclusive remedy ”. No more unequivocal expression could have been used by the Legislature as indicative of an intendment on its part to limit to workmen’s compensation the recovery available to an employee injured under the circumstances enumerated above. Both sides ¿greed — indeed, it was so stipulated — that these elements are present in the case before us. However, plaintiff claimed that the present case is taken out of the operation of subdivision 6 of section 29 by virtue of section 59 of the Vehicle and Traffic Law. We cannot agree.
Here, there is no disputing the fact that the accident and consequent injury to the plaintiff was due solely to the negligence of his fellow employee, Lafata, Sr. Lafata, Jr., the owner of the motor vehicle, did not in the least contribute to the accident and, indeed, was not even present at the time of its occurrence. To impose liability upon Lafata, Jr., by virtue of section 59 of the Vehicle and Traffic Law, would be to disregard an express legislative prohibition, viz., that the “ exclusive remedy ” of an employee injured in the course of his employment by the negligence of a fellow employee is workmen’s compensation (Workmen’s Compensation Law, § 29, subd. 6). Tt is not merely that the negligent employee is made immune from suit, but rather that the injured employee is precluded from proceeding in any manner other than under the Workmen’s Compensation Law. The reason for this complete prohibition becomes apparent when it is remembered that the owner of an automobile, held liable under section 59 of the Vehicle and Traffic Law for the negligence of one whom he has permitted to operate his vehicle, may have recovery over against the actively negligent operator (Tramb v.
It is also to be noted that the Legislature has made specific provision for a third-party suit by an employee, or his dependents if th,e employee is injured or killed in the, course of his, employment but only if he be injured or hilled by the negligence of one not in the same employ (Workmen’s Compensation Law, § 29, subd. 1). This further demonstrates an intention on the part of the Legislature to limit an injured employee’s remedy to workmen’s compensation when injured in the. course of his employment through the negligence or wrong of another in the same employ (Workmen’s Compensation Law, § 29, subd. 6). Here, the sole proximate cause of plaintiff’s injury was the negligence of his. fellow employee, Lafata, Sr., so that the present case comes within the purview and prohibition of subdivision 6 of section 29 of the Workmen’s Compensation Law.
This court, has reached the same conclusion in the case of Rauch v. Jones (4 A D 2d 572, 4 N Y 2d 592), decided herewith.
Judges Desmond, Dye, Fuld, Fboessel, Van Voobhis and Bubke concur.
Judgment reversed, etc.