Commisso v. Meeker

• Decision Date: 09 June 1960
• Citation: 202 N.Y.S.2d 287,168 N.E.2d 365,8 N.Y.2d 109
• Parties: , 168 N.E.2d 365 Rose M. COMMISSO, Respondent, v. Allen E. MEEKER et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 287

202 N.Y.S.2d 287

8 N.Y.2d 109, 168 N.E.2d 365

Rose M. COMMISSO, Respondent, v. Allen E. MEEKER et al., Appellants.

Court of Appeals of New York.

June 9, 1960.

Robert R. Cafarell and Martin F. Kendrick, Syracuse, for County of Oneida and Joseph Zambon, appellants.

Kenneth W. Fuller, Utica, for Allen E. Meeker, appellant.

Richard J. Dorsey and John P. Gualtieri, Rome, for Fradino S. Mastrangelo, appellant.

Ferdinand D. Tomaino and Harold H. Hymes, Utica, for respondent.

FROESSEL, Judge.

On December 22, 1957, at about 2:15 a.M., plaintiff, a 22-year-old unmarried young woman, was severely injured when an automobile operated by defendant Mastrangelo, in which she was riding as a passenger, collided with an automobile operated by defendant Meeker, on Oriskany Street in the City of Utica. Parked partly on the south shoulder of Oriskany Street its exact position is in dispute at the time of the accident was the patrol car of the Deputy Sheriff of Oneida County, defendant Zambon, who shortly before had apprehended a speeding motorist. Following a conversation with the latter, Zambon returned to his patrol car to prepare a summons, whereupon the three passengers who had alighted from the vehicle of the apprehended motorist came alongside the patrol car to talk with Zambon. While thus engaged in conversation, the cars of Meeker and Mastrangelo approached from opposite directions.

Mastrangelo testified that, after he passed under the 'Halfway Bridge' into Utica on Oriskany Street, he noticed a 'red flasher light' ahead of him on the southerly side of the road. As he drew closer he noticed that the light came from a county car, which he stated was parked with the left rear portion on the road. He also noticed men standing alongside. Meeker, coming from the opposite direction, also noticed the flashing red light on the county car, and men standing alongside on the paved portion of the road. As Mastrangelo approached the county car and the men alongside it, he turned his car to the left. At about the same time, Meeker was allegedly attempting to pass another automobile proceeding westerly ahead of him. He saw a flash of lights come towards him (Mastrangelo's car) and both cars met in the center of the road head on. As a result of the impact, Mastrangelo's automobile was pushed back and swung around, striking the lfet rear door of the patrol car.

Oriskany Street, where the accident occurred, is 78 feet wide. Its paved portion, consisting of three 10-foot lanes, is flanked on the north and south by wide shoulders of about 24 feet each. At the place of the accident the shoulder to the south was 26 feet wide.

It is contended on this appeal by the defendants Meeker, Mastrangelo and Zambon that none of them was negligent nor did any of them proximately cause plaintiff's injuries. All of the members of this court agree that there is ample evidence in this record to sustain the jury's contrary finding as to defendants Meeker and Mastrangelo. A majority of us similarly agree as to defendant Zambon.

The testimony of Mastrangelo that Zambon's car was parked partially on the paved portion of the street was supported by one Siemski who testified to similar effect. Siemski was traveling behind Mastrangelo's car prior to the collision. Other witnesses stated at the trial that Zambon's car was about 2 feet off the paved portion of the road. It is undisputed, however, that the 26-foot-wide shoulder on the south side, at the place where Zambon's car stood, was level for a distance of up to 15 feet south of the paved roadway; and that the shoulder was wet but firm. it is also undisputed that traffic at about the time of the accident was exceptionally heavy according to Zambon's own testimony.

Certainly the jury had a right to find on the basis of the foregoing evidence that the Deputy Sheriff did not act reasonably under the circumstances, and that he negligently obstructed the highway. Taking the view of the evidence most favorable to plaintiff, as we must do in light of the verdict in her favor, it may be said that Zambon chose to obstruct the travelled part of the roadway on a night when traffic was exceptionally heavy, and failed to make full use of the 15-foot expanse of firm shoulder which was available to him. The jury also had a right to find on the facts when thus viewed that Zambon's negligence was a proximate cause of the accident and plaintiff's resulting injuries together, of course, with the negligent acts of Mastrangelo and Meeker (Peck v. Independent Automobile Forwarding Corp., 280 N.Y. 728, 21 N.E.2d 215; Sargent v. Wass, 279 N.Y. 747, 18 N.E.2d 691; Lugert v. Cohen, 303 N.Y. 642, 101 N.E.2d 760; Overbaugh v. Emory Transp. Co., 1 A.D.2d 729, 146 N.Y.S.2d 898; see, also, Axelrod v. Krupinski, 302 N.Y. 367, 98 N.E.2d 561; Bacon v. Rochester Transit Corp., 1 A.D.2d 759, 147 N.Y.S.2d 453; Rosen v. Leibowitz Pickle Works, 257 App.Div. 855, 12 N.Y.S.2d 509, motion for leave to appeal denied 281 N.Y. 889, 22 N.E.2d 767).

The cases cited by Zambon in alleged support of his position are readily distinguishable. Most deal with instances where an automobile parked on the side of a highway had ceased to operate because of mechanical difficulties, and hence, could not be moved onto a shoulder; or an available shoulder on which to pull over was lacking. Others are distinguishable in that there was lacking a 'clear sequence' or continuous stream of events culminating in injuries to plaintiff; or that it clearly 'could (not) have been reasonably anticipated' under the circumstances, as here, 'that the consequences complained of would result from the alleged wrongful act' (Saugerties Bank v. Delaware & Hudson Co., 236 N.Y. 425, 430, 141 N.E. 904, 905).

As to the responsibility of the County of Oneida, it is true that ordinarily a governmental subdivision of the State would be liable upon the finding that its employee negligently caused injury to another in the course of performing his official duties (see County Law, Consol.Laws, c. 11, § 53, subd. 1). The County of Oneida contends, however, that holding it vicariously liable in this case for the negligent acts of its Deputy Sheriff, as did the courts below, violates section 5 of article IX of the New York State Constitution, which provides in relevant part that 'Sheriffs * * * may be required by law to renew their security, from time to time; and in default of giving such new security, their offices shall be deemed vacant. But the county shall never be made responsible for the acts of the sheriff.' (Emphasis supplied).

This immunity provision was first added to our Constitution in 1821 as part of section 8 of article IV (see text in Lincoln, Constitutional History of New York, Vol. 1, pp. 205-206). The principal purpose of section 8 of article IV, apparent from its language and the debates at the 1821 constitutional convention, was to make the office of Sheriff an elective one (see Proceedings and Debates, Constitutional Convention, 1821, at pp. 384-392 (Oct. 9, 1821)). Theretofore the office was an appointive one (N.Y.C.onst. of 1777, art. XXVI, at Lincoln, op. cit., supra, Vol. 1, p. 179).

The delegates to the 1821 constitutional convention vigorously debated the merits of electing Sheriffs to office. Immediately after the resolution proposing the change was carried, 'Mr. Munro offered an amendment as follows: 'But the county shall never be made surety for the sheriff, nor responsible for his acts.' This proposed amendment was not debated by the convention. The minutes bear the simple notation that the amendment was 'Carried'. Thus the immunity clause in effect a rider to the provision for electing Sheriffs became a part of our State Constitution.

At subsequent constitutional conventions, resolutions were offered to repeal the immunity provision, but they were never carried, with the result that this provision has endured to the present day as part of our Constitution. At the convention of 1867, Mr. Cooke proposed to repeal this provision, contending that the immunity provision 'is unnecessary, and deals with matters that ought to be the subject of legislative action rather than of constitutional provision'. Debate followed, and the proposed amendment was defeated (Convention Proceedings and Debates, 1867-1868, Vol. II, pp. 924-926; see, also, id., Vol. V, p. 3653).

At the 1938 constitutional convention, a proposed amendment (Int. No. 470) introduced by Mr. Platt was referred to the Committee on Counties and Towns (Revised Record, N. Y. State Const. Convention, 1938, Vol. I, p. 237). The committee reported favorably (id., Vol. II, pp. 1016-1017), and when the amendment was reached on the General Order Calendar the following occurred:

'Mr. Platt: I should like to move to recommit General Order No. 69, Int. No. 470, Pr. No. 799 to the Committee on Counties and Towns. That was a bill that was introduced at the instance of some of the sheriffs of the State, which would place the burden of responsibility on the county rather than the sheriffs. They feel now that it should not be done, and I therefore move to recommit.

'The President: Of course, you understand on order to recommit means to take it off of the calendar for good? Those in favor of the motion signify by saying Aye; contrary minded, No. The motion is carried. That disposes of it.' (Id., Vol. III, p. 2541.)

Another amendment eliminating the provision as to nonliability of counties for actions of Sheriffs was also proposed (Pr. No. 601, Int. No. 573; N.Y.State Const.Convention, 1938. Proposed Amdts., Vol. II). This too was not carried (see Revised Record N. Y. State Const. Convention, 1938, Vol. I, p. 254;Id., Vol. II, p. 745).

The immunity clause of section 5 of article IX has been construed by the courts on a number of occasions. The earliest reported case is that of Wolfe v. Supervisors of Richmond County, Sup. 1860, 19 How.Prac. 370. There involved was an action under the statute...