McAndrew v. Mularchuk

Decision Date28 June 1960
Docket NumberNo. A--69,A--69
Citation88 A.L.R.2d 1313,33 N.J. 172,162 A.2d 820
Parties, 88 A.L.R.2d 1313 William F. McANDREW, individually and as guardian ad litem of Robert McAndrew, an infant, and Frances McAndrew, Plaintiffs-Respondents, v. Andrew MULARCHUK et al., Defendants, and Borough of Keansburg, a municipality, Defendant-Appellant.
CourtNew Jersey Supreme Court

Prospero DeBona, Jersey City, for plaintiffs-respondents (Milton, McNulty & Augelli, Jersey City, attorneys).

Joseph V. Cullum, Union City, for defendant-appellant Borough of Keansburg (Townsend & Doyle, Jersey City, attorneys; Thomas F. Doyle, Jersey City, of counsel).

Fred G. Stickel, III, Newark, Amicus curiae for New Jersey Institute of Municipal Attorneys (Thomas M. Kane, Newark, of counsel).

The opinion of the court was delivered by


The infant plaintiff sued the Borough of Keansburg and Andrew Mularchuk to recover damages on account of a gunshot wound inflicted by Mularchuk, allegedly during the course of his duties as a reserve patrolman of the municipality. His mother and father joined as plaintiffs to present their claim for consequential losses. The action was predicated upon charges of atrocious assault and battery and negligence against the individual defendant; the borough's liability was based upon (1) negligence in authorizing and sanctioning the arming of Mularchuk with a dangerous weapon without having adequately trained and instructed him in its use, and (2) a claim that the doctrine of Respondeat superior imposed responsibility for an unlawful or negligent shooting committed in the course of Mularchuk's duty as a reserve patrolman.

The trial court dismissed the action against the borough at the close of the trial on the ground that in the present state of the law any negligence of Mularchuk in shooting the plaintiff was not imputable to it under the principle of Respondeat superior, and that the evidence had failed to disclose any independent negligence directly engaged in or chargeable to the municipality itself which would justify a recovery by the plaintiff. The Appellate Division reversed the dismissal and ordered a new trial. 56 N.J.Super. 219, 152 A.2d 372 (App.Div.1959). It held that the proof was susceptible of the inference that the borough itself, through its responsible officials in a sufficiently high echelon of authority, was guilty of active wrongdoing in allowing and directing a person untrained or inadequately trained in the handling and use of a revolver to engage in public police duties while carrying such a dangerous instrument. We granted certification because of the importance of the problem involved. 30 N.J. 600, 154 A.2d 672 (1959).

In 1926 Keansburg, by ordinance, established a police department to consist of a 'Chief of Police, two Sergeants, and such number of regular and reserve patrolmen as may be necessary to properly patrol and police the Borough.' Article 4 provided that 'the Department shall be under the control of the Chief of Police, subject to the control, supervision and regulation as provided by the laws of this state.' According to Mularchuk he was appointed a reserve patrolman under this ordinance around 1940 and reappointed annually thereafter (except for 1951 when he was designated as a 'special' policeman) down to and including 1956. The formal resolution of the council for his 1956 reappointment was received in evidence. Upon appointment, Mularchuk took the oath of office and filed a bond in the amount of $2,500 conditioned upon the faithful performance 'of all the duties enjoined upon him as Reserve Patrolman * * *.' In the pretrial order the borough asserted that the first appointment occurred in 1946 but no proof was offered to that effect. The conflict is of no great moment. The parties stipulated that Mularchuk was legally appointed a reserve officer on January 3, 1956 'under the ordinance and the statutes.' Authority to create the police department and to provice for reserve patrolmen is not questioned. See R.S. 40:47--1, N.J.S.A.; N.J.S.A. 40:47--19.

Reserve officers were pressed into service by the chief of police when needed, and while on duty for the borough they were paid at the rate of $1.25 per hour. When called in, they engaged in regular patrol activity on foot and in police cars; they worked at election times (Mularchuk had been on duty at the primary election, just shortly before the incident which forms the basis for this suit); on parade days; as bank guards (for which the borough paid them); and when on active police duty they were obliged to maintain order everywherein the municipality. The evidence also reveals that, upon request to the chief of police, an operator of a place such as a night club who expected a crowd could obtain the assignment of a reserve patrolman for the evening to keep order on his premises. In such event, the indication is that the borough did not pay the officer his hourly wage. Apparently the club operator was expected to do so. Mularchuk said there was no fixed or agreed basis for payment in such cases; he accepted whatever gratuity was tendered to him. Keansburg, being a shore resort, is more active in the warm weather and during that period Mularchuk averaged about 16 hours of duty a week. Of course, he had regular employment also; he was produce manager of a local supermarket.

A reserve patrolman, when on duty, wore a regular police uniform; dark blue trousers, lighter blue shirt, and a police hat with a badge on it. He carried a nightstick and a .38-caliber Smith & Wesson revolver in a holster attached to a Sam Browne belt, and he wore a regular police badge on his shirt. Reservemen were required to furnish their own firearms and ammunition. They were not allowed to carry the guns when off duty. This accords with the statute. N.J.S.A. 40:47--19, supra.

When Mularchuk was first appointed by the borough neither the then chief of police nor any other police official nor any member of the governing body asked him if he had any experience in the handling of revolvers, or examined him orally or by any kind of test to ascertain his skill or lack of it with police small-arms. Nor did anyone give, or offer to give, or require that he have, any training with such arms. Throughout his entire period of yearly appointments, the situation remained the same. He was never given any education nor was he required to submit to any training with respect to the revolver he carried. He did say he was instructed that the gun could be used if his life was threatened, or in a hold-up, and he was told that he could use force when an arrest was being resisted. Whether the latter advice meant that he was authorized to use his gun in the face of resistance to arrest was not explained at the trial.

At one point in the trial, counsel for the borough undertook to question the chief of police as to his knowledge of Mularchuk's proficiency in the use of a gun. An objection was interposed and sustained. On an issue of inadequate training or experience in the handling of firearms, such inquiry is relevant and should be allowed.

The evidence discloses that at the time of the shooting incident Mrs. Shirley Siegel was the owner of the Club Miami, a night club in Keansburg. During the day of Saturday, May 19, 1956, her husband, the manager of the Club, had telephoned the chief of police and requested that a policeman be assigned to his premises that night because he had engaged an extra band and expected a crowd. The Chief agreed, and requested Mularchuk to undertake the assignment. Mularchuk put on his uniform, took his night stick and revolver, and went to police headquarters. From there, in accordance with what appeared to be the custom, he was driven in a police car to the Club. His duties there were to maintain order, prevent disturbances, keep the aisles clear, and to see that the law was observed, both inside and outside the premises and 'anywhere in the Borough of Keansburg.' Closing time was 2:00 A.M. on Sunday, and the evening passed uneventfully until then. Upon termination of the festivities there, Siegel closed up. Mularchuk stepped out onto the public sidewalk, and into this unfortunate event.

Plaintiff Robert McAndrew was 17 years of age and resided in Jersey City. On this day he and a friend, one Fordi, decided to drive in his (Fordi's) car to Keansburg. They arrived at about 10:00 P.M. and thereafter visited two night clubs, the last one being the Club Miami. They left there at about 12:30 A.M. It was raining at the time, as it had been during the evening, and when Fordi was about five blocks away from the Club he undertook to make a U-turn and got stuck in the mud in the shoulder of the road. Thereafter, the services of a two truck were obtained, seemingly through a call to police headquarters, and the car was put back on the roadway. The charge for the service was not only considered exorbitant by them but it was more money than they had. As a result they went back to the Club Miami with the tow truck driver, who had retained the keys to the car, to ascertain if some further money could be borrowed from friends who were still there. Two of the friends came out of the Club and all four, standing on the public sidewalk, undertook to bargain with the two car driver about his charge. Apparently the discussion became heated and it was at this point that Mularchuk left the then closing Club. He was accompanied by David Carman, another reserve policeman of the borough, who had been assigned to active patrol duty on the beachfront that night. There is a dispute in the testimony as to whether Carman came out of the tavern with Mularchuk or met him on the street in front of it, but the conflict is of no particular significance, except perhaps on the general issue of credibility of the various witnesses. In any event, the officers intervened in the discussion between the tow car driver and plaintiff...

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