Florio v. Mayor & Aldermen of Jersey City

• Decision Date: 01 June 1925
• Docket Number: Nos. 3, 4.,s. 3, 4.
• Parties: FLORIO et al. v. MAYOR AND ALDERMEN OF JERSEY CITY. SAME v. SCHMOLZE.
• Court: New Jersey Supreme Court

129 A. 470

FLORIO et al.

v. MAYOR AND ALDERMEN OF JERSEY CITY.

SAME

v. SCHMOLZE.

Nos. 3, 4.

Court of Errors and Appeals of New Jersey.

June 1, 1925.

Appeal from Supreme Court.

Two actions by Antonio Florio and Vincenzo Citro, one against the Mayor and Aldermen of Jersey City, and the other against John Schmolze. From a judgment for defendants in each action, plaintiffs appeal. Judgment for defendant City affirmed, and for defendant Schmolze reversed.

Anthony P. La Porta, of Hoboken, for appellants.

Thomas J. Brogan, of Jersey City (Charles A. Rooney, of Jersey City, of counsel), for respondents.

KALISCH, J. The cases before us for review involve the legal questions as to the liability of a municipal corporation to a person injured through the negligence of its employee in the performance of a public duty, and as to the personal liability of such employee for his negligence in the performance of a public duty to a person injured by such negligence. These questions arise from the pleadings. John Schmolze was a fireman in the employ of Jersey City. While driving a fire truck to a fire, he negligently ran the truck against a horse and a wagon in which the plaintiffs were seated and riding, and by reason of the impact both of the latter were injured and damaged. The plaintiffs jointly brought separate actions, one against the municipality and the other against Schmolze, the driver of the fire truck. On behalf of the municipality and of Schmolze, notice was given to the plaintiffs of a motion to strike out the complaints in that neither stated a legal cause of action. This matter came on for a hearing before Mr. Justice Minturn, sitting for the Supreme Court, at chambers, who struck out both complaints upon the ground that neither stated a legal cause of action, and gave judgment for each defendant accordingly. The cases were consolidated, on the appeal to this court, and are argued together in the briefs of counsel of the respective parties.

The notice to strike out the complaint being in the nature of a demurrer, the fact of negligence is conceded and the questions to be solved, are (1) Is the municipality answerable to the plaintiffs for the negligence of its employee? (2) Is Schmolze, he being a servant of the city, and in the performance of a public duty, answerable to the plaintiffs for the consequences of his negligent conduct?

First, as to the liability of municipality for the tortious acts of its employees, it seems that this is no longer an open question in this state. That a municipality cannot be properly called upon to respond in damages to a person injured through the negligence of its employees is too well settled to need any lengthy discussion on the topic. It was the common-law rule and is the adopted legal rule in this state. This court in Condict v. Jersey City, 46 N. J. Law, 157, held that a municipal corporation is not liable for an injury occasioned by the negligence of a driver employed by its board of public works to remove ashes and refuse from boxes and barrels placed on the sidewalks, to a public dumping ground, though the driver was at the time driving a horse and cart owned by the city, and his negligence was in making a dump from the cart. Depue, J., at page 159, cites Jewett v. City of New Haven, 38 Conn. 368, 9 Am. Rep. 382 a well-considered case in which it was held that a municipality was not liable for the negligence of the members of its fire department.

In Hafford v. City of Bedford, 16 Gray (Mass.) 297, Bigelow, C. J. at page 302, says:

"The members of the fire department of New Bedford, when acting in the discharge of their duties, are not servants or agents in the employment of the city, for whose conduct the city can be held liable; but they act rather as officers of the city, charged with the performance of a certain public duty or service; and no action will lie against the city for their negligence or improper conduct, while acting in the discharge of their official duty."

Stress is laid by counsel of appellants on the case of Olesiewicz v. Camden, 126 A. 317, decided by this court and not yet officially reported in the state reports, as upholding the contention that a municipality is liable for the negligence of its employees. But a fair reading of what was there decided does not lend any support to the appellant's contention. The active wrongdoing must be chargeable to the municipality in order to render it liable, e. g. where a municipality directs its employee to dig a hole in a public highway and leaves it unguarded or participates in some other act of misfeasance of its employee through which a person suffers injury. Jersey City v. Kiernan, 50 N. J. Law, 246, 250, 13 A. 170: Hart v. Freeholders of Union, 57 N. J. Law, 90, 29 A. 490; Kehoe v. Rutherford, 74 N. J. Law, 659, 65 A. 1046, 122 Am. St. Rep. 411; Doran v. Asbury Park, 91 N. J. Law, 651, 104 A. 130; Cochran v. Public Service Electric Co., 97 N. J. Law, 480, 117 A. 620, sufficiently and clearly illustrate the conditions under which a municipality may be held liable for negligence to a person who has suffered an injury.

Since the doctrine of respondeat superior does not apply to actions against municipalities for the negligent act of their servants, therefore, under the facts of the present case, the municipality incurred no legal responsibility for the negligent act of Schmolze. The court was right in striking out the complaint. We now approach the consideration of the question whether Schmolze, he being a servant of the city in the discharge of a public duty, can be properly held liable for the consequences of his negligent act in the performance of such public duty.

In Oliver Nowell & Wife v. Wright, 3 Allen (Mass.) 166, 80 Am. Dec. 62, Dewey, J., at page 167, very aptly remarks:

"It may be a delicate if not a difficult task, to mark with precision the line of discrimination between the various classes of public officers or agents created by statute and whose duties are defined by statute, who may be held responsible to individuals in an action on the case, for injuries resulting from the improper execution of their official duties. That many such officers and agents have been so held responsible, the adjudged cases abundantly show."

In the cited case a tender of a drawbridge, appointed by the Governor, with a salary, having full care and charge of the management of the bridge and draw, and of the lamps upon the bridge, was held liable for injuries sustained by a plaintiff, who fell into the Charles river in the nighttime, through the negligence of the tender of the bridge in not shutting the gates and hanging out lanterns while opening the draw.

In Hall v. Smith, 2 Bing. at page 159, Best, C. J., says:

"If commissioners under an act of Parliament order something to be done which is not within the scope of their authority, or are themselves guilty of negligence in doing that which they are empowered...