Fedden v. Brooklyn Eastern District Terminal , 199 N.Y.S. 9 ( 1923 )

Kapper, J.:

The plaintiff, who was not an employee of the defendant, sues for damages for personal injuries alleged to have been caused by the negligence of the defendant’s employee in failing and omitting to securely hook a bale of hay which was being lowered from a hay-shed to a truck driven by plaintiff, by reason of which the hooks ' intended to hold said bale of hay became unfastened causing the bale to fall, strike and injure plaintiff. The answer is a general denial. The defendant has moved to make its employee, one Frank Horne, whose negligent act it claims caused plaintiff’s injury, a party defendant and to have him brought in as such codefendant by order. In its affidavit in support of the application defendant says that said Frank Horne “ will be wholly liable for the claim made against the defendant in the action now pending and if any recovery is had against the defendant in this action the defendant will be entitled to recover said amount from said Frank Horne.” The Special Term denied the motion.

By chapter 624 of the Laws of 1922 there was added to section 193 of the Civil Practice Act the following clause: "And where one of the parties to an action claims that a person not a party thereto is or will be liable wholly or in part, for the claim made against him in the action, the court on application of such party must direct such person to be brought in and direct the service upon such person of the pleading, alleging the claim against him.” A like provision has not heretofore been contained in any statute in this State, nor is its source to be found either in the English or the New Jersey Practice Act from which many of the new provisions of the Civil Practice Act are derived. It has long been the established rule that in an action to recover a money judgment only, a defendant could not move to bring in a third party as a codefendant. (Brooklyn Cooperage Co. v. Sherman Lumber Co., 220 N. Y. 642; Bauer v. Dewey, 166 id. 402; Chapman v. Forbes, 123 id. 632, 540; Dickinson v. Tysen, 125 App. Div. 735, 738.) A person bringing a legal action " cannot be compelled ” to sue any oqe “ except such as he may elect to sue.” (Chapman v. Forbes, supra, 540.) Joint tort feasors can always be sued in the first instance and if the plaintiff pendente lite wishes to add a joint tort feasor as a party defendant, the settled practice is to permit it. (Gittleman v. Feltman, 191 N. Y. 205; Horan v. Bruning, 116 App. Div. 482; Schun v. Brooklyn Heights R. R. Co., 82 id. 560.) But a master and his servant are not joint tort feasors where the master’s liability is dependent solely upon the doctrine of respondeat superior. (Frascone v. Louderback, 153 App. Div. 199, 203.) Or, as was said in Pangburn v. Buick Motor Co. (211 N. Y. 228, 234): “ The two defendants [employer and employee] did not stand on the same plane of liability as might sometimes happen where an action had been brought against two alleged tort feasors and where a verdict might with entire propriety be rendered relieving either one and holding the other.”

Whatever rule may elsewhere obtain, it must be deemed settled in this State that a joint action will lie against principal and agent as well as master and servant for a personal injury caused by the negligent act of the agent or servant while acting within the scope of the agent’s authority or the servant’s employment. (Phelps v. Wait, 30 N. Y. 78, and cases cited on p. 79; Wright v. Wilcox, 19 Wend. 343; Murray v. Usher, 117 N. Y. 542, 547; Frascone v. Louderback, supra; Pangburn v. Buick Motor Co., supra.) This brings us to the nature or character of the relation between master and servant where it is sought to hold the former under the doctrine of respondeat superior. The responsibility thus predicated has been designated as “ vicarious,” or “ constructive.” It has also been designated by the terms “ imposed ” and “ imputed.” It is recognized by courts both of law and equity. It exists “ wholly irrespective of any contract, express or implied, or any other relation between the injured party and the master.” Nor does it depend in anywise upon the stipulations of the contract of hiring. (6 Labatt Mast. & Serv. [2d ed.] 6692, 6693.) No joint tort feasor is sued for imputed negligence, but for his own actual negligence, and he can have “ no recourse on his fellow; ” and when a party seeks to hold both servant and master in a negligence action, the latter under the respondeat superior doctrine, he sues the servant for his actual negligence and the master for his imputed negligence. (Betcher v. McChesney, 255 Penn. St. 394, 398.) “ In a case of strict negligence by a servant while employed in the service of his master, I see no reason why an action will not lie against both jointly. They are both guilty of the same negligence at the same time, and under the same circumstances; the servant in fact, and the master constructively, by the servant his agent.” (Wright v. Wilcox, 19 Wend. 343, 344.) The master’s liability is “ purely of a derivative or secondary character.” (Pangburn v. Buick Motor Co., supra, 234.) Being such, the corollary naturally follows, namely, that a servant is directly liable to his master for any damage occasioned by the servant’s negligence or misconduct for which the master is liable to another. (7 Labatt Mast. & Serv. [2d ed.] 8011.) “ The servant is directly liable to his master for any damage or expense caused by his negligence or misconduct, and this rule applies whether such damage be directly to the property of the master, or whether it arises from the compensation or reparation which the master has been obliged to make to third persons to satisfy his liability for the acts of the servant ” (20 Am. & Eng. Ency. of Law [2d ed.], 51), or, as stated in 26 Cyc. 1545: “ A servant is liable to his master for damages which the master has been compelled to pay to third persons because of the negligent or other wrongful act of the servant, where the master is not himself in fault.” And to the same effect are numerous authorities. (Merlette v. North & East River Steamboat Co., 13 Daly, 114, 117; Grank Trunk Railway Co. v. Latham, 63 Maine, 177; Betcher v. McChesney, 255 Penn. St. 394, 396; Zulkee v. Wing, 20 Wis. 408; Gaffner v. Johnson, 39 Wash. 437; Costa v. Yochim, 104 La. 170.) Of course, the master cannot claim damages from a servant for the faulty construction of a thing or of tools or appliances furnished by the master, where the negligence be that of the master alone or contributed to by the unskillfulness of a servant. (20 Am. & Eng. Ency. of Law [2d ed.], 52.) Observing that a master may sue his servant over for liability imposed upon the former by law and by virtue of the relation, it would follow in such cases and in all cases where the liability is derivative or secondary, that by notice of the pendency of the action to the person primarily liable, and in this case to the servant, the latter is bound by the result of the suit against the master. Such is the well-established rule with regard to municipal corporations if sued for damages arising out of defects and obstructions in streets or highways created and continued by third persons and against whom the corporation has a cause of action for reimbursement. (City of Rochester v. Campbell, 123 N. Y. 405, 412; City of Rochester v. Montgomery, 72 id. 65; Village of Port Jervis v. First National Bank, 96 id. 550; Robbins v. Chicago City, 4 Wall. 657, 674.) Municipal corporations may impose the burden of defending such actions upon such persons by notice, and in case they do not defend successfully, or neglect to make any defense, they are bound by the result of such suit, and cannot in any subsequent litigation between themselves and the corporation successfully dispute the material facts on which the adjudication rests. (City of Rochester v. Campbell, supra, 412.) Even notice that an action is pending has been held unnecessary to predicate liability against the author of the act which occasions the injury. “ The only object of notice in such a case is to enable the corporation to avail itself of its right to impose the burden of defense upon the party ultimately hable, and to estop the author of the injury by the judgment recovered, from again contesting the facts upon which such judgment depends.” (Village of Port Jervis v. First National Bank, supra, 556.) The same principle of “ vouching in,” or giving notice of the pendency of action, whereby it is sought to hold over in a subsequent suit the person primarily liable, has been applied in three of the master and servant cases above cited. (Grand Trunk Railway Co. v. Latham; Costa v. Yochim; Betcher v. McChesney.)

Considering, therefore, that a servant is liable in an action at the suit of the master when a third person has brought an action and recovered damages against the master for injuries sustained in consequence of the servant’s negligence, and that the servant may' be notified by the master against whom alone the suit has been brought to defend the suit, neglecting which or defending unsuccessfully the servant is bound by the result of the suit against the master, the application of section 193 of the CivE Practice Act to a motion by a master to bring in the servant as a codefendant seems neither strained nor unreasonable, and, moreover, appears to be a fit and proper case to which section 193 should be apphed. So much of said section 193 as is not above quoted, together with the last sentence of the section as amended in 1922, is former section 452 of the Code of Civil Procedure, and was long construed as applicable to actions in equity only (Dickinson v. Tysen, supra), although it was thought in Gittleman v. Feltman (supra) to apply to actions at law as weE as in equity, where the applicant was not a party, but had an interest in the subject of the action. When, however, a plaintiff in a negligence action sought to add a new party defendant, he found authority therefor in section 723 of the Code of Civil Procedure. (Gittleman v. Feltman, supra, 208.) So much of said section 723 as related to mistakes and omissions is now section 105 of the CivE Practice Act. The portion of section 723 of the Code authorizing the “ adding or striking out ” of “ the name of a person as a party ” finds like warrant in section 192 of the Civil Practice Act. In what instances or to what cases the amendment of 1922 to section 193, above quoted, is to be applied, will have to be determined as the facts in each particular application are presented. It suffices to say on the motion made herein, that it seems to us that the defendant “ claims that a person not a party ” to the action, namely, the servant charged with a negligent act for which he, the master, is sought to be held wholly and solely liable by the plaintiff, “ is or will be liable wholly * * * for the claim made against him in the action; ” and, so, the statute adds that in such a case- “ the court on application of such party must direct such person to be brought in and direct the service upon such person of the pleading, alleging the claim against him.” Qf course, it is not to be assumed that where an employee is made a codefendant with his employer on the latter’s motion, the rendition of an inconsistent verdict would be permitted. The rights and liabilities of the parties remain as the settled law requires.

The order should be reversed upon the law, and the motion granted, without costs.

Jaycox and Young, JJ., concur; Kelly, P. J., dissents, and reads for affirmance.