Ottmann v. Inc. Village of Rockville Ctr.

• Decision Date: 13 July 1937
• Citation: 275 N.Y. 270,9 N.E.2d 862
• Parties: OTTMANN v. INCORPORATED VILLAGE OF ROCKVILLE CENTRE et al.
• Court: New York Court of Appeals Court of Appeals

275 N.Y. 270

9 N.E.2d 862

OTTMANN

v.INCORPORATED VILLAGE OF ROCKVILLE CENTRE et al.

Court of Appeals of New York.

July 13, 1937.

Action by Augusta C. Ottmann, as administratrix of the goods, chattels, and credits of Milford H. Ottman, deceased, against the Incorporated Village of Rockville Centre and Otto Stoye. On reargument as to defendant Stoye, by permission, of an appeal by plaintiff [273 N.Y. 205, 7 N.E.(2d) 102], from a judgment of the Appellate Division (248 App.Div. 592, 287 N.Y.S. 367), which reversed a judgment of the Supreme Court in favor of plaintiff.

Judgment of the Appellate Division reversed as to defendant Stoye, and that of the Trial Term affirmed. Appeal from Supreme Court, Appellate Division, Second department.

Malcolm G. Bibby, of New York City, and John R. Vunk, of Patchogue, for appellant.

William J. Sullivan and Irwin T. Longworth, Jr., both of Rockville Centre, for respondents.

HUBBS, Judge.

This is an action by the administratrix of Milford H. Ottman to recover damages growing out of the death of appellant's intestate caused by the negligence of the respondent Otto Stoye, who was a volunteer fireman and driver of a fire truck. Deceased was also a volunteer fireman and was riding on the truck at the time of the accident which caused his death.

The jury found a verdict against the village and the respondent Stoye. The judgment entered thereon was reversed by the Appellate Division on the law. We decided in this case (reported in 273 N.Y. 205, 7 N.E.(2d) 102) that the village was not liable and affirmed the judgment. The question now presented is whether Stoye, the driver of the truck, is liable for his negligence which resulted in decedent's death.

Briefly, the sole question here presented is whether one volunteer fireman is liable to another volunteer fireman, injured by his personal negligence. Ordinarily, one is liable for his own negligence. It is urged that the general rule does not apply in an action by one volunteer fireman serving without pay against another as both are engaged in a joint enterprise involving a governmental duty and that each assumes the risk growing out of the relationship. Certain public officers are immune from liability for injuries inflicted upon others while faithfully performing the duties of their office. The privilege is in some cases absolute, in others conditional. So, too, municipal corporations are, in the performance of governmental functions, absolved from liability. Harper on Law of Torts, § 295.

‘The modern tendency is against the rule of nonliability.’ Augustine v. Town of Brant, 249 N.Y. 198, 205, 163 N.E. 732, 734.

The principle underlying the granting of such privilege has no application to the relation of governmental employees, agents, or officers in their conduct toward each other. As between them, the general principle of law applies. They are bound to exercise reasonable care in the circumstances.

Sound public policy requires that one injured by the negligent act of another engaged in a public service should be permitted to recover the damages suffered as a result of such misconduct. Public service should not be a shield to protect a public servant from the result of his personal misconduct. How inequitable the contrary rule would be is illustrated by the case at bar. Although the jury has found that intestate met his death as a result of the negligence of the respondent driver of the fire truck, the municipality is not liable and we so decided. If it be held that the driver is also free from liability, there would be no liability on the part of any one for the negligent act which caused decedent's death. We believe the law to be that a servant, agent or officer of a municipality is required to do his work in a reasonably careful manner and that if he fails to do so and another is injured because of his negligence he is personally responsible, the same as any other person who has by his misconduct caused injury. Moynihan v. Todd, 188 Mass. 301, 74 N.E. 367,108 Am.St.Rep. 473;Skerry v. Rich, 228 Mass. 462, 117 N.E. 824;Voltz v. Orange Volunteer Fire Ass'n, 118 Conn. 307, 172 A. 220;Manwaring v. Geisler, 191 Ky. 532, 230 S.W. 918, 18 A.L.R. 192;Rowley v. City of Cedar Rapids and Kennedy, 203 Iowa, 1245, 212 N.W. 158, 53 A.L.R. 375;Worth v. Dunn, 98 Conn. 51, 118 A. 467;Florio v. Mayor, etc., of Jersey City and Schmolze, 101 N.J.Law, 535, 129 A. 470, 40 A.L.R. 1353;Rounds v. Mumford, 2 R.I. 154;Bailey v. Mayor, etc., of City of New York, 3 Hill, 531, 38 Am.Dec. 669; 22 R.C.L. p. 484, vol. 7, Permanent Supplement, p. 5220, and cases cited.

The Legislature has recognized the fact that volunteer firemen were liable for personal negligence by the enactment of section 50-c and section 205-b of the General Municipal Law (Consol.Laws, c. 24), by which the...