McAndrew v. Mularchuk

• Decision Date: 22 June 1959
• Docket Number: No. A--438,A--438
• Citation: 56 N.J.Super. 219,152 A.2d 372
• Parties: William F. McANDREW, Individually and as guardian ad litem of Robert McAndrew, an infant, and Frances McAndrew, Plaintiff-Appellants, v. Andrew MULARCHUK, Shirley Siegel, trading as Club Miami, and Borough of Keansburg, a municipality, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 219

56 N.J.Super. 219

152 A.2d 372

William F. McANDREW, Individually and as guardian ad litem of Robert McAndrew, an infant, and Frances McAndrew, Plaintiff-Appellants, v. Andrew MULARCHUK, Shirley Siegel, trading as Club Miami, and Borough of Keansburg, a municipality Defendants-Respondents.

No. A--438.

Superior Court of New Jersey Appellate Division.

Argued Jan. 26, 1959.

Decided June 22, 1959.

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

Joseph V. Cullum, Union City, for defendant-respondent (Townsend & Doyle, Jersey City, attorneys).

Before Judges GOLDMANN, CONFORD and HANEMAN.

The opinion of the court was delivered by

CONFORD, J.A.D.

The action is brought to recover damages for and in consequence of a gunshot wound sustained by the minor plaintiff, Robert McAndrew (hereinafter referred to as plaintiff), who was 17 years of age at the time of the events which concern us. Although plaintiffs recovered verdicts aggregating $8,000 for compensatory and punitive damages against the defendant Andrew Mularchuk, they are aggrieved at the dismissal by the trial judge, on motion, of the claim as against the defendant municipality, Borough of Keansburg, and hence appeal. The correctness of that action is the principal issue before us. There was a verdict of no cause of action as against the defendant, Shirley Siegel, doing business as Club Miami. This is not here in issue.

Some time in the late evening (after midnight) of May 18, 1956 plaintiff and some other young men became involved in an altercation with the operator of a tow truck over his charge for towing the disabled car in which plaintiff and one of the lads, Charles Fordi, owner of the car, had driven to Keansburg from Jersey City that evening. The operator was insisting upon keeping the car keys until the charge was paid; plaintiff and Fordi considered the $15 fee excessive and had insufficient money to pay it.

At the time, the defendant Mularchuk was serving as a reserve policeman of the City of Keansburg, specially assigned for the evening at the nearby Club Miami at the request of the club proprietor. He was in the company of David Carman, also a reserve police officer of the municipality, but doing regular patrol duty that day. Mularchuk was wearing a policeman's uniform and badge and carried a nightstick and gun. The attention of the policemen was drawn to the dispute by loud conversation and profane language. Mularchuk told the truck operator to take the automobile keys to police headquarters. Fordi protested, assertedly abusively, and Carman threatened to arrest him. Fordi said he wanted to go to headquarters and Carman seized him and brought him to a nearby police car, Mularchuk attending. Plaintiff followed, his testimony being that he was pleading with Mularchuk to release Fordi. Mularchuk's version is that plaintiff was swearing at and threatening him.

Plaintiff's testimony is that after the policemen threw Fordi into the car, Carman started after another of their companions and Mularchuk after him. He turned and ran but was hit in the back, about chest-high, by gunfire from Mularchuk's weapon. The latter testified that plaintiff came toward him with his hand in his pocket; that he feared he had a gun or a knife, and he drew his gun. He fired at the ground in front of plaintiff 'to scare him off,' but as he did so plaintiff turned and the bullet struck him in the back.

Plaintiff's treating physician testified that the bullet entered the body in the back at about the same level as that at which it emerged from the chest. Moreover, a passing motorist corroborated the essential details of plaintiff's version of the actual shooting.

Mularchuk was a 'reserve' policeman of the Borough of Keansburg. He had been sworn in as such for 1956 in February of that year and had held such a position for 16 years. Apparently a reserve policeman is called on duty by the municipality whenever his services are specially required. Mularchuk had previously done traffic duty, served at parades, and patrolled in police cars. For such duty he was paid $1.25 per hour.

Accrding to Police Chief McGrath, of the defendant borough, it was also customary for clubowners to have someone sworn in as a 'special' policeman for duty in the clubs, to keep the peace, keep aisles and fire exits clear, etc. An owner normally nominated the person he wanted, and the borough officials would have him sworn. These men, as reserve policemen, were told not to carry weapons when they were not on duty. When working in a club they were not required to wear a uniform or carry a gun, but the chief did not object to their doing so.

On the night in question Albert Siegel, the manager of the Club Miami, telephoned Chief McGrath to ask if reserve officer Carman was available for duty in the Club Miami. Carman was on duty but McGrath said he would try to obtain Mularchuk. The policeman at the headquarters desk did reach Mularchuk and told him to go to Siegel's. He did so, first stopping at police headquarters, wearing his uniform and gun, and was given a ride in a police car to his place of duty. The borough did not pay the men for this type of work. Compensation was received from the owner. Mularchuk arrived at the Club Miami and stayed there until the bar closed at 2:00 a.m. It was as he left that he saw the disturbance, about 100 feet away from the bar, which led to the shooting.

There was other testimony, some of it in the form of depositions of the defendant Mularchuk, bearing upon his fitness and qualifications to serve as a policeman under arms and upon the claim of negligence of the municipality in engaging him therefor. This will be enlarged upon hereinafter.

The theory of the plaintiff's cause of action against Mularchuk was for an atrocious assault and battery, and, in the alternative, for his negligence; against the municipality for his negligence on the basis of agency and for the municipality's direct negligence in engaging him and using his services.

At the conclusion of plaintiffs' case the defendant municipality moved for an involuntary dismissal, and consideration thereof was deferred by the trial judge until the end of the case. At the end of the entire case the trial judge dismissed the action against the municipality on the ground that the conduct of Mularchuk was such that, in order to hold the municipality liable for it in tort, there would have to be evidence of participation in the act by some municipal officer or agent higher up in the ranks of authority, and no such evidence appeared.

I.

Before taking up the various grounds of appeal we note the muncipality's objection to the appeal as a whole, based upon the argument that plaintiffs are not aggrieved, having recovered for their damages against Mularchuk. But it is obvious that plaintiffs' right, if any, to recovery against the defendant municipality is a valuable substantive right in the absence of any showing that they have received full satisfaction for the judgment from the defendant Mularchuk. The point is not well taken.

II.

One of plaintiffs' principal points is that the trial court was in error in requiring a showing of direction, of, or participation in Mularchuk's wrongdoing by some agent or officer sufficiently high in municipal authority to implicate the municipality itself as a participant. In effect, plaintiffs argue that recent cases have brought this jurisdiction to the position of adoption of the rule of Respondeat superior in relation to the tort liability of municipalities for the active wrongdoing of their agents or employees, even when functioning in a governmental capacity. They rely upon the recent analysis and application of these cases by the United States District Court in City of Newark v. United States, 149 F.Supp. 917 (D.C.N.J.1957), affirmed on other grounds, 254 F.2d 93 (3 Cir. 1958), which held that the negligence of a City Hospital ambulance driver at a street intersection was imputable to the City so as to bar its tort action against the United States for the negligence of a mail truck driver. The principal reliance of the District Court judge for thise conclusion was our own decision in Hartman v. City of Brigantine, 42 N.J.Super. 247, 126 A.2d 224 (App.Div.1956), affirmed, as to the subject under consideration, on the opinion below, in 23 N.J. 530, 129 A.2d 876 (1957).

We are constrained to observe, however, that we did not intend to hold in Hartman, and do not believe the opinion was so understood by our Supreme Court, that Respondeat superior implicates a municipality for the torts of its agents and employees in the same manner and to the same extent as private parties. The question was not critical there as we found that the participation in the wrongdoing by the county assistant road supervisor established the participation therein of the county, that officer having had general authority over the road project in the course of which the hazards there involved were created (42 N.J.Super. at pages 256, 257, 258, 126 A.2d at pages 229, 230). Other language in the opinion cited by the ...