11 Misc. 2d 123 | N.Y. Sup. Ct. | 1955
The plaintiff sued the City of New York and Cornelius Flynn for false arrest, negligence and assault and battery claiming punitive damages against the individual defendant. In the course of the trial decision was reserved on the city’s motions to dismiss as to it at the close of the plaintiff’s evidence and after all the evidence. A verdict was directed against Flynn for the false arrest and the assault and battery. The case was submitted to the jury for its separate verdicts as to the negligence of both defendants and on the other counts as to the city. Alternate forms of verdicts for related causes and with respect to damages were instructed to the jury. Despite clear and precise instructions as to the form of these possible alternatives, the jury brought in a general verdict for $50,000 against both defendants. Flynn’s motions addressed to the verdict were denied. The city moved before the discharge of the jury to set it aside as against the weight of evidence (Civ. Prac. Act, § 549). After the jury’s discharge the city moved against the verdict because of the
The undisputed facts as developed on the trial show that the plaintiff was an innocent patron in a Bronx restaurant about 6:30 a.m. on April 15, 1953. The defendant Flynn who did not take the stand entered with his acquaintance Nelson. Others were there as patrons, including the plaintiff’s witnesses McMillan and Feaster. Nelson, a mechanic, formerly a New York City policeman who had been dismissed for failure to disclose a criminal record, said he and Flynn had renewed an old acquaintance in a tavern around midnight. They had not seen each other for two years. When Flynn, evidently in a happy mood, proclaimed that he had that day “ signed the book” that meant that he had successfully completed a probationary six months’ period and was now a full-fledged New York City patrolman in its police department. • Nelson thereupon confided to Flynn that he had knowledge, quite plainly stale and flimsy, of violations of those laws pertaining to illicit trafficking in narcotics. He volunteered to Flynn the suggestion that they go forth at once to ferret and pursue his leads toward the end that if successful it would lead to official recognition and advancement for Flynn in the police department. Flynn agreed and they set out on what turned out to be an all-night crusade mostly in saloons and taverns (but evidently fruitless and profitless although they did drink some beer and ale) until they reached Freddie’s Diner at 168th Street and Boston Road about 6:00 a.m. It should be noted at this point that Nelson’s testimony of their conversation, on the city’s objection, was received against Flynn alone. Continuing, Freddie’s was a place on Nelson’s list of suspected premises because two years before
The immediate question involved in the city’s motions narrows itself at once to an interpretation and application of the doctrine of respondeat superior on the facts of the case. It is a question of whether or not the shooting occurred within the scope of Flynn’s employment as a patrolman of the police department of the City of New York. This is so even though the city, in its brief, puts the question in these alternatives: that the verdict was improper for as a single verdict it reflects the likelihood of duplication, viz., the coupling of the false arrest and assault counts with the negligence count and also the probability of the imposition of punitive damages against the city, although unsupported by the record; that the verdict was excessive and that it was contrary to the evidence. It is argued further that directing a verdict against the individual defendant on the counts - other than negligence may have borne heavily against the defendant city. And finally, it is urged that the complaint should be dismissed for failure to make out a prima facie case — as to which I have already said that my decision was expressly reserved.
The plaintiff, in its brief urging that the motions be denied and the verdict allowed to stand, tries to meet the dominant issue with citation of authorities which are either inept or have been misconstrued.
Reiteration of the recent principles recognizing a municipality’s liability for the misconduct of its servants is unnecessary (Bernardine v. City of New York, 294 N. Y. 361). Misconduct of policemen in the performance of their duties or even when off duty where propensity for misconduct was known to the city established a basis for recovery (McCrink v. City of New York, 296 N. Y. 99; Brown v. City of New York, 279 App. Div. 741; Riker v. City of New York, 204 Misc. 878). On the other hand, misdeeds by policemen, with their firearms, producing injury but not in the line of police duty will not fasten liability on the city. (Pacheco v. City of New York, 11 Misc 2d 80, affd. 285 App. Div. 1031).
What constitutes conduct that will impose liability against the city for the misdeeds of its policemen when off duty should be considered against the background of the facts in Brown (supra) as contrasted with those in Pacheco (supra) controlled by the decision of the Court of Appeals in Sauter v. New York
Relevant to this subject is the quotation of Lord Kenyon’s earlier rule quoted in Wright v. Wilcox (19 Wend. 343), quoted again in Isaacs v. Third Ave. R. Rr. Co. (47 N. Y. 122) that “when a servant quits sight of the object for which he is employed, and, without having in view his master’s orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him.” An evolutionary exposition of the rule may be found in Sealy on Torts (§§ 54-57).
In volume 57 of Corpus Juris Secundum (Master and Servant, § 570, subd. b) it is stated that expressions said to be equivalent to “scope of employment” are “line of duty” (although it has been stated that there is a clear distinction between the two expressions), “ course of service,” “ employer’s service,” “furtherance of employer’s business,” “prosecution of the master’s business,” “protection of the employer’s property,” and the like.
Considering the nature of the policeman’s job and his obligations and those of the department of which he is a member as can be gleaned from the pertinent regulations of the department, it is expected by the employer that he is to be fit always and armed at all times subject to respond to any call to discharge their prescribed obligations. That means that when he is performing an assigned tour of duty and also when on his own and offtime, to enforce the law and preserve the peace.
It follows in logic that to fasten liability on the city the action of the policeman must have been ‘ ‘ in line of duty ’ ’ in order to be brought within the “ scope of employment.” Patently, that is not the same thing as saying that any and all members of the police force are on duty 24 hours a day, as
Dean Young B. Smith (23 Col. L. Rev. 441, 716 “ Frolic and Detour ”), quotes Baron Parke in Joel v. Morison (6 C. & P. 501, 503) that the master is not responsible for injuries caused to others by his servant’s unauthorized negligence while “on a frolic of his own ”. The city, as master, when its policeman servant “ quits sight of the object for which he is employed ” “ and pursues that which his own malice suggests ” (Wright v. Wilcox, supra, p. 347), and after an all-night frolic shoots an innocent person in a setting in which there is absolutely no evidence of crime, no evidence of any kind of the need for action to preserve the peace, in fact, no need of any kind of police intervention, should not be held accountable for that frolic.
Paraphrasing the opinion in Kantor v. City of New York (251 App. Div. 454-456), the defendant city, in establishing and maintaining a police force for the protection of its people, is not to be expected either in reason or on authority to maintain personal control of each member of its police force in his off-time against the unforeseeable contingency that he may go berserk. The difference between Brown (279 App. Div. 741, supra) and Pacheco (285 App. Div. 1031, supra) is apparent. In Brown (supra) two off-duty policemen were accused of assault and battery of the plaintiff. The case went to the jury on the issue of fact raised by the policemen defendants who testified that they had heard a woman’s anguished scream and responding thereto their suspicions were drawn to the plaintiff, with the consequences that followed. The direct question there was the propriety of the police action. There was no question of respondeat superior. In fact, in the plaintiff-respondent’s brief in that record on appeal it is stated that respondeat superior was not raised. Pacheco (supra) on the other hand, dealt mainly with that point. In that case there was a directed verdict for the city at the close of all the evidence. Pacheco had testified that about midnight, in a tavern at its bar, he was
In the case at bar the connection of the defendant Flynn as a policeman of the city in line of duty as distinguished from defendant Flynn on his own frolic depends on the disputed narrative of his companion Nelson, the dismissed policeman. According to provisions of law which were charged to the jury (Code Crim. Pro., §§ 177-185) Flynn’s conduct in the circumstances, whether as peace officer or private citizen, was illegal. There was not the slightest basis in fact and law for his conduct in entering the premises for the purpose stated by Nelson.
Giving the plaintiff the benefit of the most favorable intendment of his evidence, in that aspect of the case to be viewed before rather than after verdict, leaves it, as the very most, doubtful whether Flynn in fact said, before the shooting * ‘ I am a policeman ”, as Nelson testified, rather than as testified by the other two plaintiff’s witnesses that Nelson said “ Why don’t you leave him alone. He’s not doing anything.” The plaintiff’s version, too, contradicted Nelson’s testimony regarding the announcement by Flynn that he was a policeman. But even if Nelson’s version be taken against that of the other witnesses, the background of their all-night activities must be deemed highly improbable and in no event, even if true, legally sufficient to put Flynn in the area of performance of his employer’s business. In the verdict of the jury against the City of New York there is necessarily implicit such a finding that Flynn’s conduct was within the scope of his employment and in the line of his duty. True it is that literally there is Nelson’s testimony to support this, a possibility but not a probability, it is incredible, and accordingly'in law there is no such evidence reasonably to support the jury’s finding. That testimony which was proffered lacks the substance which is required reasonably to support the finding. There is no evidence to support an inference that Flynn was performing duty for the defendant City of New York at the time he shot Burns. (Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241; Matter of Case, 214 N. Y. 199, 203; Jewell v. Parr, 13 C. B. 916.)
