Hein v. Sulzberger & Sons Co. of America

175 A.D. 465, 163 N.Y.S. 995, 1916 N.Y. App. Div. LEXIS 10429

Opinion

Per Curiam:

The plaintiff seeks to recover damages in this action by reason of acts of negligence of defendant White while acting as superintendent of defendant The Sulzberger & Sons Company of America, joining the superintendent individually as a codefendant with his principal. No negligence is alleged save that of the superintendent. The jury returned a verdict of no cause of action against defendant White, the superintendent, but found for the plaintiff against the principal, The Sulzberger & Sons Company of America, in the sum of $3,500.

We think such verdict was inconsistent, and leads to reversal of the judgment and to a new trial. Liability of the principal could only be predicated upon the negligence of White, its superintendent, under the doctrine of respondeat superior. The company’s liability was not that of a joint tort feasor, but was purely derivative and secondary. The jury by its verdict absolved White from any imputation of negligence or else must have found that plaintiff’s conduct was so negligent as to defeat any recovery. In either case such finding was in effect that the defendant company was not negligent. Having found the defendant White blameless, the only consistent verdict which the jury could have rendered as to the defendant The Sulzberger & Sons Company of America, was one of no cause of action. The evidence seems sufficient to charge both defendants, but in view of the verdict in favor of defendant White, no verdict should have been rendered against the defendant company. (Pangburn v. Buick Motor Co., 211 N. Y. 228.)

Both judgments entered on the verdict of the jury should be reversed and a new trial granted, with costs to the appellant in each appeal to abide the event.

All concurred.

Judgments and order reversed and new trial granted, with costs in each appeal to the appellant to abide the event.