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Malament v. Lidsky

Supreme Court of New York, Appellate Division

December 16, 1953

JUDITH MALAMENT, an Infant, by EVELYN MALAMENT, Her Guardian ad Litem, et al., Respondents,
JULIUS LIDSKY, Appellant and Third-Party Plaintiff. HARRY MALAMENT, Third-Party Defendant.

APPEAL from a judgment of the Supreme Court in favor of plaintiffs, entered December 15, 1952, in New York County, upon a verdict rendered at a Trial Term (BOTEIN, J.).


Emile Z. Berman of counsel (Louis Helfenstein with him on the brief; Frederick Mellor, attorney), for appellant.

Ralph Stout of counsel (Louis H. Levine with him on the brief, attorney), for respondents.


Plaintiffs, the wife and two infant children of Harry Malament, an employee, truck driver, of defendant-appellant, Julius Lidsky, owner of the truck in question, have recovered, after trial before the court and a jury, judgments totalling over $50,000 against defendant Lidsky, the employer. Lidsky appeals.

Page 136

The accident causing the injuries to plaintiffs happened in 1947 in Maryland, when Malament, the employee, with his wife and his two children on Lidsky's truck, was driving it back to New York after a trip thereon from New York to Virginia. Defendant employer, a contractor, had a job in Virginia; the employee testified that he suggested using the truck to bring some of defendant's building materials to the Virginia job from New York, and asked Mr. Lidsky if he could take his (the employee's) family with him on the trip; and claimed he procured the employer's express permission to do so. The employee's family consisted of his wife and two infant children, one, two years old; the other, six at the time in question. The employer denied he authorized the use of the truck for the trip to Virginia; emphatically denied that he had permitted his employee to take the employee's wife and family thereon; and affirmatively testified that when he found them all on his truck in Virginia, he thereafter ordered the employee to return his wife and children to New York by railroad and not to dare put them back on the truck.

On the return trip to New York the accident happened in Maryland north of Washington, D. C. Concededly the employee's wife and his six-year-old child were seriously injured; the verdict for personal injuries in the wife's favor was $35,000; for the six-year-old infant $14,000; and for the two-year-old infant $1,000, totalling with costs over $50,000.

The sole basis for predicating any liability against the employer, owner of the truck, is the employee's testimony that the brakes, the steering wheel and the tires of the truck were dangerously defective; that the employee, the driver, had informed the employer of these defects four or five times before the accident; and that in spite of such notice and knowledge, the employer permitted the truck to be used in such dangerously defective condition, and permitted the employee's wife and infant children to ride therein without warning them of the known dangerous conditions.

As the accident happened in Maryland, the law of Maryland controls. In my opinion, the learned trial court correctly charged the jury that under Maryland law the employee's wife and two infant children were not permitted to recover any damages against the employer for injuries sustained as a result of any negligence of the employee, the husband and father ( David v. David, 161 Md. 532; Riegger v. Bruton Brewing Co., 178 Md. 518; Furstenburg v. Furstenburg, 152 Md. 247); and he also correctly charged that the sole negligence that could be

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predicated against the employer was his alleged improper maintenance of the truck with knowledge of the dangerously defective conditions in brakes, steering wheel and tires; and that, if the jury found the employer had such knowledge and the employer's negligence flowing therefrom caused or contributed to cause the accident, even if it concurred with the employee's negligence, then the jury might find defendant employer liable. Defendant took no exception to these charges. At defendant's request and without exception, the trial court also charged that to hold defendant owner liable, the jury must find that the truck was defective in the manner claimed; that defendant employer had actual knowledge of the claimed defective conditions; and with such knowledge failed to warn plaintiffs, the wife and children of the truck driver, employee, of such conditions and of the risk involved.

Originally, defendant employer had filed a third-party complaint against his employee as a third-party defendant; but at the close of the testimony, the trial court ruled that the claimed negligence of the employer was not derivative based on the rule of respondeat superior, but 'independent' negligence; and, if the jury found that the employer's negligence in his failure properly to maintain and repair the truck was the sole or concurring cause of the accident and the injuries, then the employer would be guilty of active negligence, he would be an active joint tort-feasor with his employee; and, accordingly, he could have no recovery over against his employee. With that ruling defendant's counsel expressly concurred, and immediately asked leave to discontinue his third-party action against the employee. Such leave was granted.

On the law of the case, therefore, as above indicated, defendant may not in this court raise any issue with regard to the charge or the ...

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