Burns v. City of New York , 174 N.Y.S.2d 192 ( 1958 )

Stevens, J.

This is an appeal by plaintiff from that part of a judgment entered in this action in the office of the Clerk, Bronx County, July 7, 1955, and resettled in said office July 15, 1955, which set aside a verdict in favor of the plaintiff as against defendant, the City of New York, and dismissed the complaint against the city.

The facts are fairly stated in the accompanying dissent by Mr. Justice McNally, and will not be reviewed here.

The verdict having been set aside and the complaint dismissed, the facts are taken in the light most favorable to the plaintiff, and “ in determining whether the facts proved constitute a cause of action, give the appellant the benefit of every favorable inference which can reasonably be drawn ” (Faber v. City of New York, 213 N. Y. 411, 414).

It is not disputed that the plaintiff herein on the morning of April 15, 1953, was shot and injured severely by patrolman Flynn. The officer was dressed in civilian clothes and had completed his tour of active duty at 4:00 p.m., April 14, 1953.

The respondent contends that it is not liable because Flynn was not acting within the scope of his employment at the time that the acts were done.

In determining if there was. evidence sufficient to raise a question of fact whether the acts complained of were committed within the scope of Flynn’s employment a review of basic principles is required.

As was pointed out in one of the leading cases on the subject ‘‘ There is, at this time, but little conflict of judicial opinion in respect to the general rule by which the liability of a master for the misconduct of his servant, resulting in injury to third persons, is to be tested and ascertained. * * * When the master is to be considered as having authorized the wrongful act of the servant, so as to make him liable for his misconduct, is the point of difficulty.” (Andrews, J., in Rounds v. Delaware, Lackawanna and Western R. R. Co., 64 N. Y. 129, 133.)

‘‘ When it is said that the master is not responsible for the wilfull wrong of the servant, the language is to be understood as referring to an act of positive and designed injury not done with a view to the master’s service, or for the purpose of executing his orders.” (Cohen v. Dry Dock, East Broadway and Battery R. R. Co., 69 N. Y. 170, 174.)

In the case just cited plaintiff, while driving along a street in the city of New York, was stopped by a blockade of vehicles, leaving the rear part of his buggy dangerously near the defendant’s track so that a car could not pass upon the track without striking it. A car approached on the track driven by defendant’s employee who stopped, observed the situation and directed the plaintiff to move. The plaintiff promised to move as soon as he could. Thereafter, using profanity and threatening to get plaintiff “ off some way or other,” defendant’s employee started his horses, the platform of defendant’s car struck plaintiff’s buggy and overturned it, causing injury.

The court said (p. 174): “ The evidence should at least have been submitted to the jury. They were the proper judges of the motives and purposes of the driver, and of the character and quality of his acts.”

In the Rounds case (64 N. Y. 129, supra) the defendant’s brakeman ejected a trespasser from the train. The boy fell against a woodpile, which the brakeman knew was at that location, and rolled under the car and was injured: The rules prohibited anyone riding upon the platform of the cars.

The trial court (p. 132) refused to charge that the defendant was not liable “ if the baggageman acted willfully and wantonly without authority from the defendant.”

The Court of Appeals, in affirming the judgment, pointed out (pp. 137-138): “ If the master, when sued for an injury resulting from the tortious act of his servant while apparently engaged in executing his orders, claims exemption upon the ground that the servant was, in fact, pursuing his own purposes, without references to his master’s business, and was acting maliciously and willfully, it must, ordinarily, be left to the jury to determine this issue upon a consideration of all the facts and circumstances proved.”

While it is for the court to pass upon the competency of the evidence, when the defense is that the act was not within the general scope of the servant’s authority, it is for the jury to give effect to it. (See Mott v. Consumers’ Ice Co., 73 N. Y. 543, 550.)

It should be pointed out that although Flynn was assigned regular hours of active duty, he was in fact on call 24 hours a day and subject to duty at all times (Rules and Regulations of N. Y. City Police Department, No. 157). He was charged with a corresponding duty “at all'times of the day and night, to protect life and property, prevent crime, detect and arrest offenders,” etc. (Rules and Reg., supra, No. 155). In recognition of the existence of the duty and to facilitate its execution, Flynn was required to carry a service revolver at all times, and this might well have been a foreseeable consequence, though we do not so hold. The blowing of a whistle or the punching of a time clock did not serve as the line of demarcation in his employment.

“ The degree of responsibility conferred upon the employee is an important consideration in determining scope of employment, for, as the court put it in Cohen v. Dry Dock, E. B. and B. R. R. Co. (69 N. Y. 170, 173): ‘ The master who puts the servant in a place of trust or responsibility * * * is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper * * * goes beyond the strict line of his duty or authority, and inflicts an injustifiable injury on another ’.” (Froessel, J., in Becker v. City of New York, 2 N Y 2d 226, 232.)

By reason of the peculiar nature of the policeman, Flynn’s, employment, he did not cease to be an employee when his tour of active duty ended. It cannot be contended seriously, that an officer, not on active duty nor assigned to the narcotic squad, is without authority to arrest a narcotic violator or even a narcotic suspect. If this had been a valid arrest, unquestionably the city would have openly ratified Flynn’s action.

Bearing that in mind much, if not most of the testimony of Nelson which was excluded, might have been admitted in evidence as against the defendant city, not necessarily to establish the truth of the content of the alleged conversations, as to establish the fact and nature of such conversations.

We refer particularly to Nelson’s conversation with Flynn regarding the purpose of the proposed nocturnal excursion and their subsequent activities in alleged pursuance of the stated objective. This was conversation with a defendant who without question was an employee of the city and it could not at that stage be determined whether or not Flynn was acting within the scope of his employment.

Here the witness Nelson was available with ample opportunity afforded for cross-examination, the deprivation of which constitutes the principal justification for the hearsay rule. The fact that certain statements were made, as distinguished from their truth or falsity, was relevant upon the trial. Such statements were not offered as testimonial assertions, but they might well serve to indicate circumstantially the state of mind of Flynn acting thereafter. (See Richardson on Evidence [8th ed.], § 206 et seq.) For there are occasions when the intent of a servant in the doing of an act, or the nature and quality of the act done, become material.

To hold a master liable where there has been an excssive or erroneous use of authority, “ it must be shown both that the servant intended to do on behalf of the master something of a kind which he was in fact authorized to do, and that the act, if done in a proper manner, or under the circumstances erroneously supposed by the servant to exist, would have been lawful ” (Osipoff v. City of New York, 286 N. Y. 422, 427, citing Pollock’s Law of Torts [14th ed.], pp. 72, 73).

If Flynn in fact had observed a narcotic violator, to notify the narcotic squad would have taken time, caused delay and probably resulted in the escape of the suspect. The question, therefore, of the scope of his employment, the intent with which he did the act, and whether, under the circumstances the act was one he was justified in doing on his master’s behalf, were questions for the jury. (See Casey v. Davis & Furber Machine Co., 209 N. Y. 24; Simms v. Bergamo, 3 N Y 2d 531.)

We think this case can be distinguished from the Sauter case (Sauter v. New York Tribune, 305 N. Y. 442) where, after two vehicles collided, the defendant’s driver-employee, being called upon to give his license, struck the plaintiff. The parties were separated. The plaintiff went back of the truck and got down on one knee to look under the lowered tail gate to read the license number. While in that position, the defendant’s driver went back to him and kicked plaintiff in the face. The court observed (p. 446): “ The assault upon plaintiff was something more than imperfect performance of the duty to submit credentials when circumstances required; it was a positive refusal to act as impliedly directed by the employer New York Tribune, Inc., thereby constituting a willful departure from the employer’s business and the furtherance of its interests.” The court (p. 446) referred to the fact that the second attack occurred subsequent to plaintiff’s request to see defendant’s employee’s license “ and at a time when plaintiff had walked away from Finnegan and had abandoned his efforts to exchange license numbers with him.” (Cf. Restatement, Agency, §§ 236, 245, comments (d), (f) and illustrations 11, 12.)

Nor do we think this case falls within the orbit of the ruling in the Pacheco case (Pacheco v. City of New York, 11 Misc 2d 80, affd. 285. App. Div. 1031, motion for leave to appeal denied 309 N. Y. 1030). There the plaintiff joined willingly in the peregrinations of the officer, participated in the frolicsome activities which all too obviously were of a questionable nature, and on the basis of the plaintiff’s testimony it was established clearly that the officer was not engaged in the discharge of police duties.

It is settled law that the mere fact that a servant, placed in a position of trust or responsibility, goes beyond the strict line of his duty or authority and inflicts an unjustifiable injury upon another does not excuse the master when the servant is engaged in the general furtherance of the business of his master (De Wald v. Seidenberg, 297 N. Y. 335).

“A master who authorizes a servant to perform acts which involve the use of force against persons or things, or which are of such a nature that they are not uncommonly accompanied by the use of force, is subject to liability for a trespass to such persons or things caused by the servant’s unprivileged use of force exerted for the purpose of accomplishing a result within the scope of employment.” (Restatement, Agency, § 245; see, also, comments (d), (f); see Curran v. Buckpitt, 225 App. Div. 380; see, also, De Wald case, supra, where a superintendent of a building assaulted a tenant; 57 C. J. S., Master and Servant, § 575, and discussion thereunder.)

This principle received negative recognition in Oneta v. Tocci Co. (271 App. Div. 681, 683) where, in reversing judgment for plaintiff, it was pointed out ‘‘ there was nothing in the nature of Cordon’s employment which required that he use force.” The character of a policeman’s employment frequently, if not inevitably, involves the use of force.

“ The doctrine of respondeat superior is grounded on firm principles of law and justice. Liability is the rule, immunity the exception. It is not too much to expect that those who serve and minister to the public should do so, as do all others, subject to that principle and within the obligation not to injure through carelessness. * * * Insistence upon respondeat superior and damages for negligent injury serves a two-fold purpose, for it both assures payment of an obligation to the person injured and gives warning that justice and the law demand the exercise of care.” (Fuld, J., in Bing v. Thunig, 2 N Y 2d 656, 666 — hospital malpractice case.)

The concept of responsibility in this area is an expanding one. The tendency is to place on the master the risks of all those whose faults may be regarded as incidental to the enterprise, as it should be, rather than on the innocent victim. It is what Harper and James on Torts (p. 1377) refer to as the inevitable toll of lawful enterprise.

The view expressed in Justice Holmes’ famous dictum, “ A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends ” (Kawananakoa v. Polyblank, 205 U. S. 349, 353), has no validity in application in this State, by reason of the Court of Claims Act (§ 8); Bernardine v. City of New York (294 N. Y. 361) and numerous cases declaring or recognizing that immunity from suit no longer exists.

The trial court charged the jury on the law ably when it placed the case in the jury’s hands, and the court itself recognized that if Nelson’s testimony be believed there might be some basis for liability (11 Misc 2d 123).

However, there were certain questions asked of Nelson which, upon objection, were limited in applicability to Flynn, but which when repeated were not objected to, the city resting apparently upon the belief that they had an automatic or continuing objection. This is not so. But in fairness to the city it should be allowed to meet the issue raised.

It cannot be said on the record here as a matter of law, and in light of the views expressed herein, that the defendant city is or is not liable. Nor can it be said that because the servant had in part some motive of his own, he had lost sight of the interest of his master and the object of his employment, or that the act was not done in furtherance of his master’s business and incident to the performance of Flynn’s duties.

The triers of the fact must resolve the question if there was any evidence that the act of Flynn occurred within the scope of his employment, or was done with the express or implied authorization of the master. As has been pointed out, not every deviation from duty results in exculpation of responsibility.

The judgment insofar as appealed from should be reversed on the law and the facts and a new trial ordered, with costs to the appellant.