Sikora v. Keillor

Christ, J. The question before us is whether the exemption from civil liability which is granted to a volunteer fireman by section 205-b of the General Municipal Law extends to the absent owner of a motor vehicle used by such fireman in the performance of his duty. The statute in pertinent part reads: “ Members of duly organized volunteer fire companies in this state shall not be liable civilly for any act or acts done by them in the performance of their duty as volunteer firemen, except for wilful negligence or malfeasance. Nothing in this section contained shall in any manner affect the liability imposed upon cities, towns and villages by section two hundred eighty-two-g of the highway law ’ ’1. This is an action to recover damages for personal injuries resulting from the alleged negligent operation of an automobile owned by defendant Gene D. Keillor and operated by defendant Ronald Keillor while the latter was in the performance of his duties as a volunteer fireman. The complaint does not charge the absent owner of the automobile with direct negligence but only with vicarious liability arising from the driver’s negligent operation of the vehicle. Special Term struck out the affirmative defense of the automobile owner, defendant Gene D. Keillor, in which she asserted the codefendant fireman’s freedom from liability by reason of section 205-b of the General Municipal Law. The court held that the fireman’s immunity is no bar to recovery against the absent owner of the vehicle. We feel constrained to disagree with the determination of the learned Justice then sitting at Special Term. In our opinion, the underlying purpose of the statutory exemption, viz., to encourage and facilitate volunteer firemen’s service, will not be accomplished if the immunity from liability does not extend to the owner of the vehicle which was used by the fireman [8] in the performance of his duty. But quite apart from such reason, in view of the derivative or secondary character of the owner’s liability under section 388 of the Vehicle and Traffic Law (formerly Vehicle and Traffic Law, § 59), it logically follows that if no recovery can be had against the volunteer fireman, there is no right of action against the absent owner whose liability is purely statutory (cf. Naso v. Lafata, 4 N Y 2d 585; Rauch v. Jones, 4 N Y 2d 592). Section 388 of the Vehicle and Traffic Law wrought a change in the common law by attributing the negligence of the operator to the owner of the motor vehicle being used with the owner’s permission (Mills v. Gabriel, 259 App. Div. 60, 61, affd. 284 N. Y. 755); This statute was designed to prevent an owner, who had given permission for the use of his automobile, from escaping liability to injured persons by claiming that the automobile was not being used in his business (Plaumbo v. Ryan, 213 App. Div. 517). The owner of the vehicle is under no liability for the operator’s negligence save that which is imposed on him by the provisions of the Vehicle and Traffic Law. Since the statute is in derogation of the common law, it “ may not be presumed to make any innovation upon the common law further than is required by the mischief to be remedied” (Psota v. Long Is. R. R. Co., 246 N. Y. 388, 393). We do not ascribe to the Legislature the intent to immunize the negligent fireman operator and at the same time to impose liability on a nonnegligent owner. If the operator is released, the owner must be deemed to be released as well, since the owner’s liability depends upon and springs from the operator’s liability; basically one cannot exist without the other. Nor is there any need for the responsibility to be fastened on the owner of the vehicle in order to facilitate plaintiff’s recovery for an actionable wrong. Section 205-b of the General Municipal Law, which exempts volunteer firemen from liability for ordinary negligence, transfers such liability to the municipality, thereby effecting a substitution of remedies and parties. It is said that if the owner be held liable, he would have a claim over against the municipality. Even if, arguendo, the validity of that statement be assumed, such circuity of action would serve no purpose, since, as indicated, plaintiff has been given a direct cause of action against the municipality. The case (Schubert v. Schubert Wagon Co., 249 N. Y. 253) cited in the opinion of Special Term, does not control the situation at bar. In that case liability was imposed under the rule of respondeat superior. The question of the vicarious statutory liability of an absent automobile owner was not involved. [9] Accordingly, the order should be reversed as to defendant Gene D. Keillor, with $10 costs and disbursements to her, and plaintiff’s motion to strike out the affirmative defense of that defendant should be denied. The appeal by defendant Konald Keillor should be dismissed, since the order does not apply to him and he therefore is not a party aggrieved. Footnotes [1] Now sections 50-a and 50-b of the General Municipal Law, derived from section 282-g of the Highway Law, which refer to negligence in the operation of a “ municipally owned vehicle.”