APPEAL from a judgment of the Supreme Court in favor of plaintiff, entered June 18, 1953, in Franklin County, upon a verdict rendered at a Trial Term (AULISI, J.).
Bruce R. Sullivan and Charles B. Sullivan for appellant.
John T. DeGraff and Clifford W. McCormick for respondent.
This case has had a long course before the court at Trial and Special Term and on appeal, induced in part by the differing positions which the litigants found it needful to take in the protection of their several interests as the case passed from one stage to another in its procedural evolution. Having a record before us now in a more fully rounded form than heretofore, we reach for answers that may go toward solving the litigation with finality.
The plaintiff Jewtraw and the defendant Hartford Accident and Indemnity Company's assured William E. Davis both live at Saranac Lake. They are neighbors and friends. On February
3, 1949, Davis made a trip in his truck to Ottawa, Canada, to get some costumes for a Lake Placid winter carnival.
It must be deemed to have been found that Davis asked plaintiff Jewtraw to accompany him, to 'go along and help' and agreed to pay Jewtraw's expenses. Davis worked as a refrigerator repairman and getting the costumes for the carnival was no part of his work or business. He understood, however, that he was to be paid for the trip but had not actually been paid at the time of trial.
An accident happened in the Province of Ontario in which Jewtraw was injured. The Highway Traffic Act of Ontario (Ontario Rev. Stat., 1937, ch. 288, § 47, subd. 2) which was deemed applicable to the accident provided for 'non-liability' by the owner of a motor vehicle for negligence to a 'gratuitous passenger'. Jewtraw sued Davis in the New York Supreme Court for damages for injuries due to negligence. To avoid the effect of the Ontario guest statute he pleaded that he had been 'expressly or impliedly engaged and employed by the defendant to accompany him in said automobile truck' for the purpose of obtaining and taking the costumes to Lake Placid.
The liability policy which defendant insurance company had written on Davis' truck contains enumerated exclusions. One is of primary importance in this litigation and is set forth as 'exclusion (d)' which provides that the policy did not apply to injury 'of any employee of the Insured while engaged in the employment, other than domestic, of the Insured or in domestic employment if benefits therefor are either payable or required to be provided under any workmen's compensation law'. 'Exclusion (e)' provides that the policy does not apply 'to any obligation for which the Insured or any company as his insurer may be held liable under any workmen's compensation law'.
The insurance company under certain specific requirements of its policy provided counsel for Davis who interposed an answer in the action of Jewtraw denying the allegations of negligence and denying the employment relationship, pleading among other things that plaintiff was 'riding as a gratuitous passenger' and alleging the effect of the Ontario statute as avoiding Davis' liability for negligence to such a passenger.
A short time before the trial of the negligence action the insurance company wrote Davis calling attention to the claim being made by Jewtraw that he was in the employ of Davis and stating that 'if this fact is established in trial and judgment is rendered on that fact' there 'is no coverage under * * *
your policy'. The case was submitted to the jury with a distinct instruction from the Judge that unless it were found that the relationship of employer and employee existed between Davis and Jewtraw at the time of the accident there could be no recovery. The jury returned a general verdict for $10,000 for Jewtraw.
Upon appeal here the judgment entered on the verdict was affirmed because the court was of opinion the record was sufficient to create an issue of fact on the employer-employee relation of the parties. ( Jewtraw v. Davis, 277 A.D. 918.) The attorney for the insurance company who prosecuted the appeal for Davis argued that on the facts shown in the record the relationship was too casual to have matured into such a master and servant status as to avoid the effect of the Ontario guest statute.
This court was told that the facts on the trial showed no element of dominance and serviency between Davis and Jewtraw, or any true consideration for services rendered by the purported employee; and it was contended by the appellant that this was 'the ordinary relationship of two friends, both riding to the City of Ottawa for the first time, one assisting the other because of their long-standing, friendly social relationship and the fact they were practically neighbors'. (Appellant's Brief, p. 28 in Jewtraw v. Davis, 277 A.D. 918.)
The appellant's brief on that appeal also advanced the argument that 'the relationship was not master and servant, but was a voluntary rendition of services or a favor to be rewarded by a gratuity', language which almost exactly took up the words quoted by HUBBS, J., in Ferro v. Sinsheimer Estate (256 N.Y. 398, 402) to the effect that 'employment' in the sense in which the word was understood both at common law and in workmen's compensation statutes is not met by 'a mere casual voluntary rendition of a slight service or favor rewarded by a gratuity'. This language, in turn, had its origin in a dissent in this court in Matter of Mandatto v. Hudson Shoring Co. (190 A.D. 71).
Jewtraw's brief on that appeal, on the other hand, was a full-blown argument for the existence of a conventional employment relation. He argued that 'The jury necessarily found that the relationship of master and servant existed and this finding is abundantly supported by the evidence'. (P. 8.) He added that the 'contract of service was conclusively established by undisputed proof of an offer, acceptance and consideration' and plaintiff 'had done the work expected of him' and defendant
'had paid the consideration he agreed to pay'. (P. 9.)
Cases under guest statutes were cited in support of Jewtraw's contention. One was Ganzhorn v. Reep (234 Iowa 495). It was concluded by Jewtraw on this point that his 'status as employee' and Davis' 'control as employer were conclusively established by defendant's statement that there was 'work' to do and his request that the plaintiff go along to 'help"'.
An additional point argued by the appellant Davis on that appeal was that in the light of the charge of the court to the jury employment was necessarily to be inferred from the verdict and that plaintiff thereupon came within the operation of the New York Workmen's Compensation Law. This was based on a showing that the 'employment' began and ended with the journey in New York. This court was of opinion in its decision of affirmance that this question having been raised for the first time on appeal was not then available (p. 919).
The insurance company refused to pay the judgment against its assured Davis, whereupon Jewtraw, as judgment creditor succeeding to the rights of the assured, instituted this action under Insurance Law (§ 167, subd. 1, par. [b]) to recover the amount of the judgment against the defendant as the insurance carrier of Davis. Jewtraw in the complaint in this action pleaded, merely, that he was 'riding as a passenger' in the Davis truck when the Ontario accident occurred.
The insurance company denied this allegation. It pleaded as a separate defense the allegation that had been made by Jewtraw of his employment by Davis, as set forth in the original Jewtraw complaint; and pleaded the charge of the Judge to the jury in the first action that liability could be predicated only on a finding of relationship of employer and employee, and, therefore, in view of such employment, the exclusion from coverage of injury to any employee of the insured while engaged in the employment of insured.
Upon these pleadings supplemented by affidavits addressed largely to matters of record on the prior trial, plaintiff moved at Special Term for summary judgment and this motion was granted. In the light of the arguments that are advanced on the appeal presently before us, it seems helpful to examine the positions taken by the respective parties in the present action when its merits were first judicially examined on the plaintiff's motion at Special Term for summary judgment.
Jewtraw's affidavit on that motion contained a statement of his legal views as well as of his version of facts. He addressed
himself first to the defense which the insurance company had pleaded in its answer under exclusion (d) in the policy excepting employees of the insured from coverage. He italicized the words of the clause relating to workmen's compensation. He argued that this clause 'may reasonably be construed to disclaim coverage under the policy only where the injured employee is entitled to the benefits of compensation under the provisions of any applicable ...