Burdo v. Metropolitan Life Insurance

Hill, P. J. Plaintiff’s intestate came to her death from accidental injuries received when, she was struck at a street crossing by an automobile driven by Joseph Mulchy, defendant’s assistant manager at Saratoga Springs. A jury has found that Mulchy drove the car in a negligent and careless manner, and thereby caused the death. The evidence sustains that finding. As to this the court is in accord. [27] Our divergent views are epitomized in a sentence from the dissenting opinion: “ There would probably be little debate over the liability of the defendant, if the assistant manager Mulchy were the 1 servant ’ of the employer.” “ Servant ” and “ employee ” are nearly synonymous. The first is used most frequently in connection with employment in the domestic field. A little before eight o’clock in the morning on the day of the accident, Mulchy, driving his automobile, left his home in Saratoga Springs and started upon his work. The accident happened in the evening while he was returning to his home where the automobile was kept in his garage. In the interim he had traveled substantially twenty-five miles, visiting the villages and hamlets of Corinth, Ashgrove Farms, Middle Grove, Greenfield Center and Porter’s Corners, calling upon and collecting premiums from about fifty of defendant’s policyholders, half of whom lived outside the hamlets and villages and off the main highway traversed by passenger buses. Defendant’s manager, Mr. Schmoll, outlined the route over which Mulchy was to travel and listed those upon whom he was to call. It was known and understood by Schmoll that Mulchy would make this trip in his own automobile, and one dollar and fifty cents was allowed for transportation. That it would have been impractical for Mulchy to have made the trip by public bus, even to call upon the policyholders living on the bus line, is shown by the answer to a question: “ By the Court: If that were so, when you stopped at the first one on the main line, would the bus wait for you while you made a collection or would you have to wait until the next day to get the bus to go to No. 2? By the Witness: I would have to walk.” Even greater obstacles would be presented as to the calls made upon dwellers on unimproved highways. The defendant had knowledge that Mulchy was using his car in its service and that he would be unable to cover the territory required in the time allotted in any other manner. When Mulchy first applied for a position with defendant in the city of Utica, the manager asked him if he owned an automobile, and when he was transferred to Saratoga Springs, Schmoll made the same inquiry. Mulchy received sixty dollars a week and under certain contingencies commissions and expenses. He devoted a portion of his time to the solicitation of new business and at other times he collected premiums. His work was controlled and directed by the local manager to whom he reported and who fixed his hours and assigned the particular locality or route where he was to work. For some weeks he had been engaged in collecting premiums, almost to the exclusion of all other work. On each of three days of the week he traveled about twenty-five miles on country routes. He [28] was an employee, not an independent contractor. (Hexamer v. Webb, 101 N. Y. 377, 383.) His service for defendant began when he left home in his automobile en route to the villages and hamlets mentioned. (MacClelland v. Dodge Brothers, 233 App. Div. 504; Theyken v. Diplomat Products, Inc., 243 id. 822; affd., 268 N. Y. 658; Crowell v. American Fruit Growers, Inc., 227 App. Div. 678; affd., 253 N. Y. 543.) “ Of that journey [the outgoing] the homeward journey was a necessary counterpart.” (Gibbs v. Macy & Co., Inc., 214 App. Div. 335; affd., 242 N. Y. 551.) When the accident happened Mulchy was on the direct route to his home and garage from the residence of the last policyholder upon whom he called that day. The defendant is hable if he was its employee and was using the automobile with its knowledge and consent and in its business. (Brown v. Steamship Terminal Operating Corp., 267 N. Y. 83, 90.) The evidence sustains the finding of the jury that such were the facts. The judgment should be affirmed. Rhodes and Heffernan, JJ., concur; McNamee and Crapser, JJ., dissent, McNamee, J., with an opinion, in which Crapser, J., concurs.