Raplee v. City of Corning

• Decision Date: 10 July 1958
• Citation: 6 A.D.2d 230,176 N.Y.S.2d 162
• Parties: Robert E. RAPLEE, Respondent, v. CITY OF CORNING, Steuben County, New York, village of Horseheads, Chemung County, New York, George W. Page, individually and as Chief of Police of the Village of Horseheads, Chemung County, New York, and Arthur Webster, individually and as a member of the Police Department of the City of Corning, Steuben County, New York, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 162

176 N.Y.S.2d 162

6 A.D.2d 230

Robert E. RAPLEE, Respondent, v. CITY OF CORNING, Steuben County, New York, village of Horseheads, Chemung County, New York, George W. Page individually and as Chief of Police of the Village of Horseheads, Chemung County, New York, and Arthur Webster individually and as a member of the Police Department of the City of Corning, Steuben County, New York, Appellants.

Supreme Court, Appellate Division, Fourth Department.

July 10, 1958.

Albert E. Hollis, Hornell, for respondent.

Cramer & Donovan, Elmira, for appellants, Village of Horseheads, et al., Ralph S. Cramer, Elmira, of counsel.

Joseph J. Nasser, Corning, for appellants, City of Corning, et al.

Before McCURN, P. J., and KIMBALL, WILLIAMS, GOLDMAN and HALPERN, JJ. GOLDMAN, Justice.

Defendants appeal from a judgment recovered by the plaintiff, pursuant to a jury verdict construed by the trial court to be for $25,000, as a result of plaintiff being shot by a revolver fired by defendant George W. Page, Chief of Police of the defendant Village of Horseheads.

The shooting of plaintiff occurred while defendant Page, in the company of a state trooper and defendant Webster who was a police officer of defendant City of Corning, was investigating a series of forgeries which occurred in Chemung County. Defendant Page was in fact looking for one Blake, and in company with the others went to the apartment of the plaintiff who defendant Page thought was Blake. Plaintiff offered to take the police officers to Blake and it was on this mission that the shooting of the plaintiff took place.

The record indicates several irregularities which require that the verdict be reversed. The interests of justice will best be promoted by granting a new trial as to all of the parties. We have considered all of the points raised by the appellants but believe that only three of them require any comment in arriving at our determination that there should be a new trial.

The only testimony with reference to wounding of plaintiff indicates that the bullet of defendant Page's gun penetrated the plaintiff's left thigh midway between the knee and the hip. Except for the scar left by the bullet entering the front and emerging from the back of the leg, there is no medical proof of any permanent injury. Medical and hospital bills amounted to $50 and $68 respectively. There is absent of record any probative evidence of any other special damages which the jury could consider.

We believe the verdict necessarily rests upon the awarding of punitive or exemplary damages. This is evident from the amount of the verdicts and the manner in which they were reported by the jury. The foreman made the following statement:

'We find that the jury--by a unanimous verdict the jury has found both guilty of assault and recommendation of damages of $15,000 George Page and Village of Horseheads, and $10,000 Arthur Webster and the City of Corning.'

After a conference in chambers, the Court asked the jury the following questions:

'You return a verdict against the Village of Horseheads and Officer Page in the sum of $15,000?

'A. Yes.

'The Court: And you say that is unanimous. And you return a verdict of $10,000 against the City of Corning and Arthur Webster and that is unanimous?

'A. Yes.'

The clerk's minutes recite a verdict for plaintiff against Village of Horseheads and George W. Page for $15,000 and a verdict against the City of Corning and Arthur Webster for $10,000. The trial court in the memorandum denying various motions of defendants directed the clerk to enter a verdict against all defendants in the aggregate sum of $25,000.

The verdicts should not have been accepted and dealt with in this way. There was in fact no verdict of $25,000 against all of the defendants and it came about only by order of the court. Even if we should assume that the jury intended to return a verdict of $25,000 against all defendants the amount is clearly excessive in the absence of exemplary damages. Although the complaint did not ask for exemplary damages, it was within the authority of the court to have presented that question to the jury in the light of the proof presented if the court's charge had clearly instructed the jury in this connection. The question whether a municipality may be held accountable for exemplary or punitive damages in the absence of statutory sanction is not free from doubt. See authorities collated in 19 A.L.R.2d 903 et seq. and in 38 American Juris., Municipal Corporations, § 663. No exception was taken to the charge as to exemplary damages in the instant case and as a general rule the charge would, therefore, become the law of the case. Antonsen v. Bay Ridge Savings Bank, 292 N.Y. 143, 146, 54 N.E.2d 338, 339. Young v. Village of Potsdam, 297 N.Y. 712, 713, 77 N.E.2d 16 has been cited as authority for allowing punitive damages against a municipality but in that case, like the instant one, no exception was taken to the court's charge and thus we find no positive answer there to this problem. There is little question that defendant Page individually, upon proper proof, could be held for punitive damages. The problem as to this type of damages against defendant Webster, if chargeable with any damages on the record before us, is highly questionable. See generally on the subject, Krug v. Pitass, 162 N.Y. 154, 56 N.E. 526; Landseidel v. Culeman, 47 N.D. 275, 181 N.W. 593, 13 A.L.R. 1339, 62 A.L.R. 244; Green v. Kennedy, 48 N.Y. 653; Costich v. City of Rochester, 68 App.Div. 623, 73 N.Y.S. 835; Hawkins v. Kuhne, 153 App.Div. 216, 137 N.Y.S. 1090, affirmed 208 N.Y. 555, 101 N.E. 1104. Cf. Young v. Village of Potsdam, supra, 297 N.Y. 712, 77 N.E.2d 16, supra; Flamer v. City of Yonkers, 309 N.Y. 114, 127 N.E.2d 838. On a new trial the charge should be in accord with the authorities herein cited and if the question of exemplary damages is submitted we would suggest that the jury find specially as to each defendant both as to compensatory and exemplary damages. It must also be borne in mind, however, that there can be but a single verdict as against all joint tort-feasors insofar as compensatory damages are involved.

As we have indicated the better practice where a jury attempts to apportion a verdict against joint tort-feasors would be to send the jury back for further consideration under adequate instructions. We have not overlooked the cases which are authority for the proposition that...