Magar v. Hammond

• Decision Date: 09 January 1906
• Citation: 183 N.Y. 387,76 N.E. 474
• Parties: MAGAR v. HAMMOND et al.
• Court: New York Court of Appeals Court of Appeals

183 N.Y. 387

76 N.E. 474

MAGAR

v.HAMMOND et al.

Court of Appeals of New York.

Jan. 9, 1906.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Frank L. Magar against Stoddard Hammond and others. From a judgment of the Appellate Division (95 App. Div. 249,88 N. Y. Supp. 796), affirming a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Reversed.

Henry Bacon, John J. Beattie, and George H. Carpenter, for appellants.

William Vanamee, Abram F. Servin, and Thomas Watts, for respondent.

CULLEN, C. J.

This action was brought to recover damages for injuries inflicted on the plaintiff by a bullet from a rifle discharged by the defendant Tompkins, a watchman or gamekeeper employed by the defendant Hammond to guard a fishpond, and against said Hammond. The pond was situate in a tract of 300 acres of forest land in Sullivan county, in this state. The defendant Hammond had stocked it with fish and posted the notices required by law for its protection. The plaintiff, with two companions, at night, had been taking trout from the pond, and was in the woods on its bank when Tompkins passed by in a boat and fired either three or four shots at him and his companions, as claimed by the plaintiff, the third of which struck the plaintiff. On the other hand, Tompkins denied he was in any way aware that the plaintiff, or any other person, was in the adjacent woods, and asserted that he fired the shots in the air simply to frighten off any poachers that might be in the vicinity. The case has been here before, when a judgment recovered by the plaintiff was reversed for error in the charge. 171 N. Y. 377, 64 N. E. 150,59 L. R. A. 315. In the report of that appeal the facts of the case are recited in detail. The evidence given on the present trial is substantially the same as that on the previous one.

We think the rules of law applicable to the case are well settled and comparatively simple. The plaintiff and his companions were trespassing on the premises of the defendant Hammondand engaged in the commission of a crime. The defendants, therefore, owed them no duty of affirmative care, and the only obligation resting upon the defendants was to abstain from willfully, wantonly, or recklessly injuring them. Sutton v. N. Y. C. & H. R. R. Co., 66 N. Y. 243;Johnson v. Same, 173 N. Y. 82, 65 N. E. 946. But, though the plaintiff and his associates were engaged in the commission of a crime, that crime was only a misdemeanor, and it did not authorize the use against them of a deadly weapon or the infliction upon them of serious bodily harm. Even in the case of a peace officer, he is justified in the use of a deadly weapon against an offender only when its use is necessary to secure the arrest of the offender and when the offender has been guilty of a felony. Pen. Code, §§ 204, 223. So, when a policeman shot and killed a fleeing prisoner, the prisoner having been guilty of a misdemeanor, but not of a felony, the policeman was held guilty of manslaughter. Conraddy v. People, 5 Parker, Cr. R. 234. Under these principles of law neither Tompkins nor his master and codefendant was liable for the accidental or merely negligent discharge of his rifle. If, on the other hand, being aware or believing that the plaintiff, or other human beings, were on the bank of the pond, Tompkins shot the plaintiff willfully, intending to hit him or some human being, or if, without intending to hit the plaintiff or any human being, he recklessly or wantonly shot where he had good reason to believe there were human beings, then he is liable for the injury caused to the plaintiff. To render the defendant Hammond liable for the willful, reckless, or wanton act of Tompkins, the act must have been done by Tompkins in the scope of his employment, and whether it was so done should be submitted as a question of fact to the jury. Craven v. Bloomingdale, 171 N. Y. 439, 64 N. E. 169. If Tompkins, not having the interests or services of his master in mind, and acting maliciously or in order to effect some purpose of his own, shot the plaintiff, then his master, the defendant Hammond, is not liable for his act; but if his act was within the general scope of his employment, and done with a view to the furtheranceof his master's business, then Hammond is liable, whether the act was willful, wanton, or reckless. Mott v. Consumers' Ice Company, 73 N. Y. 543;Rounds v. Del., Lack. & W. R. R. Co., 64 N. Y. 129, 21 Am. Rep. 597;Lynch v. Met. El. R....