Ottmann v. Village of Rockville Centre , 275 N.Y. 270 ( 1937 )

This is an action by the administratrix of Milford H. Ottmann to recover damages growing out of the death of appellant's intestate caused by the negligence of the respondent Otto Stoye, who was a volunteer fireman and driver of a fire truck. Deceased was also a volunteer fireman and was riding on the truck at the time of the accident which caused his death.

The jury found a verdict against the village and the respondent Stoye. The judgment entered thereon was reversed by the Appellate Division on the law. We decided in this case (reported in273 N.Y. 205) that the village was not liable and affirmed the judgment. The question now presented is whether Stoye, the driver of the truck, is liable for his negligence which resulted in decedent's death.

Briefly, the sole question here presented is whether one volunteer fireman is liable to another volunteer fireman, injured by his personal negligence. Ordinarily, one is liable for his own negligence. It is urged that the general rule does not apply in an action by one volunteer fireman serving without pay against another as both are engaged in a joint enterprise involving a governmental duty and that each assumes the risk growing out of the relationship. Certain public officers are immune from liability for injuries inflicted upon others while faithfully performing the duties of their office. The privilege is in some cases absolute, in others conditional. So too, municipal corporations are, in the performance of governmental functions, absolved from liability. (Harper on the Law of Torts, § 295.)

"The modern tendency is against the rule of non-liability." (Augustine v. Town of Brant, 249 N.Y. 198, 205.)

The principle underlying the granting of such privilege has no application to the relation of governmental employees, agents or officers in their conduct toward each other. As between them, the general principle of law applies. They are bound to exercise reasonable care in the circumstances.

Sound public policy requires that one injured by the negligent act of another engaged in a public service should be permitted to recover the damages suffered as a result of such misconduct. Public service should not be a shield to protect a public servant from the result of his personal misconduct. How inequitable the contrary rule would be is illustrated by the case at bar. Although the jury has found that intestate met his death as a result of the negligence of the respondent driver of the fire truck, the municipality is not liable and we so decided. If it be held that the driver is also free from liability, there would be no liability on the part of any one for the negligent act which caused decedent's death. We believe the law to be that a servant, agent or officer of a municipality is required to do his work in a reasonably careful manner and that if he fails to do so and another is injured because of his negligence he is personally responsible, the same as any other person who has by his misconduct caused injury. (Moynihan v. Todd, 188 Mass. 301; Skerry v. Rich,228 Mass. 462; Voltz v. Orange Volunteer Fire Assn., Inc.,118 Conn. 307; Manwaring v. Geisler, 191 Ky. 532; Rowley v.City of Cedar Rapids, 203 Iowa, 1245; 53 A.L.R. 375; Worth v.Dunn, 98 Conn. 51; Florio v. Mayor of Jersey City,101 N.J.L. 535; Rounds v. Mumford, 2 R.I. 154; Bailey v. NewYork, 3 Hill, 531; 22 R.C.L. p. 484, vol. 7, Permanent Supplement, p. 5220, and cases cited.)

The Legislature has recognized the fact that volunteer firemen were liable for personal negligence by the enactment of section50 (c) and section 205 (b) of the General Municipal Law (Cons. Laws, ch. 24), by which the municipalities expressly assumed that liability.

The doctrine of joint enterprise does not apply in an action by an occupant of a car against a driver. It applies only to third persons. Appellant's intestate did not have joint control of the truck. Neither did he assume the risk of the driver's negligence. (Harper on the Law of Torts, § 148, note 50, and cases cited; Huddy on the Law of Automobiles [8th ed.], § 814; City of GrandRapids v. Crocker, 219 Mich. 178, 192; Donoghue v. HolyokeSt. Ry. Co., 246 Mass. 485; O'Brien v. Woldson, 149 Wn. 192; 62 A.L.R. 436, and note; Webb v. Elmira Water, Light R.R. Co., 144 Misc. Rep. 506; Wilmes v. Fournier, 111 Misc Rep. 9; affd., 194 App. Div. 950; Bailey v. Jourdan, 18 App. Div. 387; Geary v. Metropolitan St. Ry. Co., 84 App. Div. 514; affd., 177 N.Y. 535.)

If appellant's intestate had been injured through the negligence of a third party, the third party as a defense could not have prevailed by establishing that the driver was negligent. His negligence could not have been imputed to appellant's intestate. (Bailey v. Jourdan, supra; Geary v.Metropolitan St. Ry. Co., supra.)

The sections of the General Municipal Law cited were enacted after this cause of action arose and are not controlling in this case.

The judgment of the Appellate Division should be reversed as to the respondent Stoye and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.

CRANE, Ch. J., LEHMAN, LOUGHRAN, FINCH and RIPPEY, JJ., concur; O'BRIEN, J., taking no part.

Judgment accordingly.