102 A.2d 471 (N.J.Super.A.D. 1954), A-623, Kelley v. Curtiss

Docket Nº:A-623.
Citation:102 A.2d 471, 29 N.J.Super. 291
Opinion Judge:CLAPP, S.J.A.D.
Party Name:KELLEY et al. v. CURTISS et al.
Attorney:John A. Laird, Newark, argued the cause for plaintiffs-appellants (Greenstone & Greenstone, Newark, attorneys). Vincent P. Torppey, Newark, argued the cause for defendant-respondent City of Newark (Horace S. Bellfatto, Newark, attorney).
Judge Panel:Before Judges CLAPP, GOLDMANN and EWART.
Case Date:January 18, 1954
Court:Superior Court of New Jersey
 
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Page 471

102 A.2d 471 (N.J.Super.A.D. 1954)

29 N.J.Super. 291

KELLEY et al.

v.

CURTISS et al.

No. A-623.

Superior Court of New Jersey, Appellate Division.

January 18, 1954

         Argued Nov. 23, 1953.

         Action for injuries to plaintiff who was kicked by police officer's horse which was left unattended in driveway to private parking lot. From a dismissal at close of plaintiff's case as to defendant city, the plaintiff appealed. The Superior Court, Appellate Division, Clapp, S.J.A.D., held that city may be held liable on proof of active wrongdoing, directed or participated in by city, and that it was question for jury whether there was wrongdoing and whether city had directed or participated therein by failure of police inspector, charged generally with duty in the premises, to exercise ordinary diligence to discover active wrongdoing, and to take reasonable means to prevent a continuance thereof.

         Reversed and new trial ordered.

Page 472

         [29 N.J.Super. 293] John A. Laird, Newark, argued the cause for plaintiffs-appellants (Greenstone & Greenstone, Newark, attorneys).

          Vincent P. Torppey, Newark, argued the cause for defendant-respondent City of Newark (Horace S. Bellfatto, Newark, attorney).

          Before Judges CLAPP, GOLDMANN and EWART.

         [29 N.J.Super. 294] OPINION

         CLAPP, S.J.A.D.

         This case, laying before us some fundamental questions on municipal liability for torts, was dismissed as against the defendant, City of Newark, at the close of plaintiffs' case. Plaintiffs appeal.

         The plaintiff, Mrs. Gladys Kelley, was kicked by a horse which was tethered, and unattended, in a driveway, perhaps 35 feet in width, leading to a private auto parking lot. The horse, owned by the city and assigned to Officer Curtiss of the mounted police, had, for 20 minutes to an hour, daily, for over a year, been left by him there in this fashion. For over a year too, Mrs. Kelley had been parking her car there daily and, with Curtiss' knowledge, been feeding the horse sugar or candy three or four times a week. She had just done this when she was kicked.

         Five months before, the horse while tethered in the lot, and unattended, had kicked another passerby (we of course, on a motion to dismiss, are concerned with those inferences from the evidence, which favor the plaintiff). Of this incident the passerby made a report to the police, and a transcript thereof formally drawn by an officer and bearing a lieutenant's signature, is in evidence. More important, Curtiss made out his own report of the incident to the police inspector, to whom he made all his reports. Whether these reports of his reveal his practice of parking the horse there unattended, we do not know.

         Plaintiffs' entire position is this. A municipality will be held for tortious conduct in a governmental function, in two situations only: first, where the conduct is not punishable by indictment; or second, where, even if so punishable, it constitutes active wrongdoing. Here, plaintiffs say, you are faced with both situations.

          The first branch of this thesis may-if you look back for the origin of it-be laid to some remarks of Chief Justice Beasley uttered in his forceful manner in Jersey City v. Kiernan, 50 N.J.L. 246, 13 A. 170, 172 (Sup.Ct.1888). He seems to have founded his decision there upon the proposition that civil relief should be afforded whenever ‘ an indictment will [29 N.J.Super. 295] not lie’ -that is, whenever the breach of duty is altogether private in character; for otherwise,

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he says, the one ‘ damnified is remediless.’ However, he confined what he had to say, to a private nuisance. For a comprehensive and illuminating discussion of other phases of the point, indeed of this whole matter, see Joseph Weintraub and Milton B. Conford, Tort Liability of Municipalities in New Jersey, 3 Mercer Beasley L.Rev. 142 (1934).

         The only decision which seems to push this broad proposition of the Chief Justice to the full reach of its logic into the field of negligence is Olesiewicz v. Camden, 100 N.J.L. 336, 126 A. 317 (E. & A.1924), the case on which plaintiffs rely. However, doubt was thrown upon the case in certain respects by Allas v. Rumson, 115 N.J.L. 593, 599, 181 A. 175, 102 A.L.R. 648 (E. & A.1935).

         Other cases which rely upon the Kiernan case have to do with nuisances or wrongs arising from a use of real property, or of a building thereon or sewers which may be said to be a part thereof. Waters v. Newark, 56 N.J.L. 361, 28 A. 717 (Sup.Ct.1894), affirmed 57 N.J.L. 456, 35 A. 1131 (E. & A.1894); Hart v. Board of Chosen Freeholders of Union, 57 N.J.L. 90, 29 A. 490 (Sup.Ct. 1894); Murphy v. Borough of Atlantic Highlands, 77 N.J.L. 452, 76 A. 1073 (Sup.Ct.1909); Bisbing v. Asbury Park, 80 N.J.L. 416, 78 A. 196, 33 L.R.A.N.S., 523 (E. & A.1910); Caruso v. Town of Montclair, 88 N.J.L. 405, 98 A. 670 (Sup.Ct.1916), affirmed 90 N.J.L. 255, 100 A. 339 (E. & A.1917); Buckalew v. Board of Chosen Freeholders of Middlesex, 91 N.J.L. 517, 104 A. 308, 2 A.L.R. 718 (E. & A.1918); Johnson v. Board of Ed., Wildwood, 102 N.J.L. 606, 611, 133 A. 301 (E. & A.1926); Allas v. Rumson, 115 N.J.L. 593, 181 A. 175, 102 A.L.R. 648 (E. & A.1935), supra; Bengivenga v. Plainfield, 128 N.J.L. 418, 26 A.2d 288 (E. & A.1942); cf. Casey v. Bridgewater Twp., 107 N.J.L. 163, 151 A. 603 (E. & A. 1930).

          At any event, any endeavor to apply the Kiernan doctrine to a matter of negligence, as distinguished from one of nuisance, can hardly be sustained at this day. Indeed, the very decisions upon which the plaintiffs rest their claim on the second branch of the case, destroy the first branch of it. Kress v. City of Newark, 8 N.J. 562, 573, 86 A.2d 185 (1952); Milestrey v. Hackensack, 6 N.J. 400, 408, 79 A.2d 37 (1951). These [29 N.J.Super. 296] decisions hold a municipality accountable for negligence in connection with a public duty, only in a case of active wrongdoing directed or participated in by the municipality. See, too, Lydecker v. Board of Chosen Freeholders of Passaic, 91 N.J.L. 622, 628, 103 A. 251, 253, L.R.A.1918D, 351 (E. & A.1918), stating, as to negligence, that ‘ the common-law of liability is confined to active wrongdoing’ ; and Ansbro v. Wallace, 100 N.J.L. 391, 393, 126 A. 426 (E. & A.1924), holding active wrongdoing to be the ‘ only’ exception to the rule of municipal immunity with respect to negligence. It makes no difference in a matter of negligence that the injury is not of a public character. The Kress case was one of private injury; it clearly could not be said there (as was said in Johnson v. Board of Ed., Wildwood, 102 N.J.L. 606, 611, 133 A. 301, 303 (E. & A.1926), supra) that ‘ any member of the public might be injured.’

         There may still be with us a remnant of the Kiernan doctrine (illogically confined to the facts of that case), namely, in a situation where a private nuisance arises out of a nonfeasance of which the municipality has notice; but we need not deal with that. It is not clear as to what constitutes a nuisance. 4 Restatement, Torts, 216; Prosser, Torts, 549, 1074 (1941). But it is clear, at all events, that there is none here. So the first branch of plaintiffs' thesis falls.

         The second part of the thesis calls for proof of active wrongdoing, directed or participated in by the municipality. Kress v. City of Newark, 8 N.J. 562, 86 A.2d 185 (1952), supra. Subdividing the matter, so as to look at it closely, we are brought to these fields of inquiry; was there wrongdoing, was it of an active sort, and was it directed or participated in by the municipality?

Page 474

          On this first question we are refered to Healey v. P. Ballantine & Sons, 66 N.J.L. 339, 49 A. 511, 512 (Sup.Ct.1901). There a horse, which kicked the plaintiff, was being led along a sidewalk. Quoting words from 1 Beven, Negligence, 97, the court held that if the horse was ‘ where it should not be,’ the case could not be nonsuited, because ‘ kicking is not so far remote from what is to be expected from the natural disposition of horses.’ Further, the court sustained a charge:

         [29 N.J.Super. 297] ‘ that even a kind and gentle horse will on occasion kick. Now, having that in view * * * did the stableman act negligently and carelessly in leading the horse along the sidewalk.’

         It was unnecessary, the court added, for the plaintiff to prove either the propensities of the animal to kick or the matter of Scienter. Kastner v. Weinstein, 107 N.J.L. 254, 153 A. 538 (E. & A.1931); Pincus v. Sublett, 26 N.J.Super. 188, 97 A.2d 712 (App.Div.1953); Restatement of Torts, s 518; but cf. Barnett v. Pulda, 116 N.J.L. 141, 182 A. 879 (E. & A.1936). We think it was for the jury to determine whether a horse standing in this driveway to a private auto parking lot, was ‘ where it should not be,’ and whether, therefore, the leaving of it there, tethered, but without anyone to hold its bridle, amounted to wrongdoing.

          But was this wrongdoing active? It must be taken as settled now that a ‘ negligent act of commission’ is active wrongdoing. Milestrey v. Hackensack, 6 N.J. 400, 408, 79 A.2d 37 (1950), supra; Florio v. Jersey City, 101 N.J.L. 535, 540, 129 A. 470, 40 A.L.R. 1353 (E. & A.1925). Defendant overlooks this. It may be helpful to observe that the assertion found many times in the cases that ‘ negligence in the performance’ of a public duty is not actionable, must now be taken as overruled. Waters v. Newark, 56 N.J.L. 361, 28 A. 717 (Sup.Ct.1894), affirmed 57 N.J.L. 456, 35 A. 1131 (E. & A.1894), supra; Lydecker v. Board of Chosen Freeholders of Passaic,...

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