270 A.D. 1019 | N.Y. App. Div. | 1946
On January 3, 1943, one Anderson, a member of the police force of defendant for twenty years, then off duty and in civilian clothes, while intoxicated, shot and killed one Frank McCrink and seriously wounded the individual plaintiff with his service revolver. These are consolidated actions to recover damages, by the administratrix for personal injuries sustained by her intestate and for his wrongful death, and by the individual plaintiff for personal injuries. Judgment for plaintiffs reversed on the law and the facts, without costs, and the complaints dismissed on the law, without costs. Police Department records show that Anderson had been guilty of departmental offenses on twenty occasions, inclusive of three charges of intoxication, and had sustained contusions, lacerations and sprains not in the line of duty on ten occasions. No proof was adduced of any vicious propensities on the part of Anderson prior to January 3, 1943, save that it appears that on one occasion in 1936, the basis of one of the intoxication charges, a woman had complained to police officers of the presence at a street comer of an intoxicated policeman, Anderson, “ with a gun.” There is no proof of any conduct, save as disclosed by the Police Department record, or of the appearance of Anderson, which would indicate that he was a chronic alcoholic or mentally ill. The facts are insufficient upon which to predicate the conclusion that defendant should have anticipated the assaults perpetrated by Anderson, even though four months after the occurrence, and on May 5, 1943, Anderson was diagnosed as a “Paranoid deterioration type” with a “Psychosis due to alcohol.” (Ford v. Grand Union Co., 268 N. Y. 243; ef. Swinarton V. Le Boutülier, 7 Mise. 639, affd. 148 N. Y. 752; Fletcher v. Baltimore é Potomac Railroad, 168 U. S. 135; FLogle v. Franklin Manufacturing Co., 199 N. Y. 388; Rafsky v. City of New York, 257 App. Div. 855.) Hagarty, Acting P. J.. Johnston, Adel, Aldrich and Nolan, JJ., concur.