Workman v. City of New York

• Decision Date: 15 August 1894
• Citation: 63 F. 298
• Parties: WORKMAN v. MAYOR, ETC., OF THE CITY OF NEW YORK et al.
• Court: U.S. District Court — Southern District of New York

63 F. 298

WORKMAN v. MAYOR, ETC., OF THE CITY OF NEW YORK et al.

United States District Court, S.D. New York.

August 15, 1894

Wing Shoudy & Putnam and Mr. Burlingham, for libelant.

William H. Clark, Corp. Counsel, and James M. Ward, Asst. Corp. Counsel, for Mayor, etc.

William L. Findlay, for Fire Department and Gallagher.

BROWN District Judge.

In the afternoon of July 11, 1893, a fire broke out on the westerly side of South street, about opposite pier 48, East river. For the purpose of assisting in putting out the fire, the Fire boat New Yorker, belonging to the mayor, aldermen, etc., made her way into the adjoining slip, and in the haste of the occasion she was run into the bow of the barkentine Linda Park, causing the latter considerable damage, for which the above libel was filed.

1. For the respondent it is contended, that a less rigid rule of care is applicable in the urgencies of such an occasion, and that considering the circumstances, the collision should not be held to have proceeded from negligence. I have no doubt that some acts which might properly be deemed negligent under ordinary circumstances ought not to be held negligent under the stress of fires. But the same general rule is, I think nevertheless to be applied as the test of what is due care viz., the care that a man of ordinary prudence would be reasonably supposed to exercise under like circumstances, if the burning property, and the property damaged, had been his own. Making all such allowances, and looking at the facts from that point of view, I still think, considering that the Linda Park was properly moored at the dock, that the fire boat Havemeyer was already at work in the slip, and the urgency not being extreme, that the running into the Linda Park arose through lack of reasonable prudence, and was unnecessary, and negligent.

The fire boat belonged to the city, but was under the control and management of the fire department, the heads of which are appointed by the mayor. It is contended that neither the mayor, aldermen, etc., nor the fire department, is legally answerable for these damages; not the mayor, etc., it is said, because though owner, it had no control over the management of the vessel; and its duties were not corporate duties. The fire department, it is said, it not liable, because not a corporation capable of being sued, nor having any funds for the payment of any decree.

2. It is certainly a startling proposition, that all the shipping of this port, foreign and domestic, should be at the mercy of the city fire boats, and liable to be negligently run down and sunk at any moment, without responsibility for damages. By the maritime law, both the vessel and the owner are ordinarily liable for such a marine tort. But if the vessel is in the public service, she is not allowed to be withdrawn therefrom by arrest and sale, for reasons of the public convenience (The Fidelity, 16 Blatchf. 569, Fed. Cas. No. 4,758); or, if the owner, by whose authority and consent she is navigated, can show any other independent legal principal in control of the navigation, such, for example, as a charterer in possession, then the latter only is personally responsible, on the principle of respondeat superior. If the legal principal at the time of the injury was the state; that is, if the vessel was strictly in the service of the state, and in the performance of state duties, the state as sovereign not being suable, there is, perhaps, no redress, except by action against the particular individual in fault, and an appeal to the grace and the moral obligation of the sovereign for compensation by legislative act.

But it is obvious that the fire boat New Yorker, at the time she inflicted this injury, was not in the service of the state, nor performing any duty of the state. The extinction of fires is not a duty of the state, nor a work which the state has ever undertaken to perform, as a part of its general governmental functions. The state was certainly not the principal in the navigation of the New Yorker. Only the corporation, or the fire department, as an independent legal entity, could, therefore, be the principal; and if the fire department is not an independent legal entity capable of being sued, as the defendant contends, then, inasmuch as the city corporation owned the vessel in their charge to be navigated for this very work, the corporation must be responsible, in the view of the maritime law, as the only legal principal in the case. To absolve itself, it must show some other independent legal principal in charge of the navigation. The F. C. Latrobe, 28 F. 377.

3. The relations of the city corporation and the fire department to each other, and to the state,a nd their respective rights and obligations, are questions of local municipal law, upon which the decisions of the court of appeals, as the highest tribunal of the state, are binding on the federal courts. Detroit v. Osborne, 135 U.S. 492, 10 Sup.Ct. 1012; Claiborne Co. v. Brooks, 111 U.S. 400, 410, 4 Sup.Ct. 489.

The court of appeals has made no adjudication as to the status of the fire department of this city under the consolidation act of 1882, or as to the responsibility of the corporation for the acts or negligence of that department.

As respects the general responsibility of municipal corporations for torts, the settled law of this state, since the decision of the court of appeals in Conrad v. Trustees, 16 N.Y. 158, adopting the opinion of Seldon, J., in Weet v. Brockport (see note, 16 N.Y. 163), is that the conferring of corporate powers, privileges and duties, if accepted and acted upon by the corporation, is a sufficient consideration for the implied agreement to exercise such duties with fidelity, and that 'whenever the corporation assumes to exercise its corporate powers, it is bound to see that due care and caution are used to avoid injury to individuals' (Id. p. 172). In all subsequent discussions, the decisions have turned essentially upon the question, whether the work or duties in the execution of which the negligence occurred, were properly corporate duties, intended to be imposed by law on the corporation; or whether they were duties of a general governmental nature, appropriate to the state, and imposed, not upon the corporation itself, but only upon certain officers of the corporation, or a department of the corporation, as an independent agency of the state, as the state might have appointed any other individuals, or board, to perform the same duties.

In the former case, the corporation is held liable; in the latter, not. To the latter class, under the acts prior to 1882, belong the duties of the department of charities and correction, in charge of the poor, the criminal and the insane (Maxmilian v. Mayor, etc., 62 N.Y. 160); those of the police department (Swift v. Mayor, 83 N.Y. 535); those of the board of education (Ham v. Mayor, 70 N.Y. 459); in all which cases the corporation was held not liable. See, also, New York, etc., Sawmill Co. v. City of Brooklyn, 71 N.Y. 580, and Bieling v. City of Brooklyn, 120 N.Y. 105, 106, 24 N.E. 389. The doctrine of the first three cases was, that the duties there in question were a part of the general governmental functions of the state, such duties as the state was accustomed to provide for, and to enforce, by means of some officers, throughout the state, and in the most retired townships-- 'such duties as are to be performed in every political division of the state, not for its peculiar benefit, but for the public' at large (per Folger, J., in Maxmilian v. Mayor, etc., 62 N.Y. 168); and that when the duties are of such a nature, and, by the acts in question, are 'not laid upon the corporate body, ' and do not inure to its peculiar benefit, profit or advantage, the imposing of such duties on individual officers, or a department, of the corporation, is not to be construed as imposing any new duties or liabilities upon the corporation itself, and therefore does not make the corporation legally responsible as principal.

On the other hand, where the nature of the work and of the duties required by the statute to be performed, are not of the above character, but are essentially local, in which the municipality has a special interest, as distinguished from the public at large; or where the corporation derives therefrom some emolument, profit or advantage, then the imposition of duties upon officers, or a department, of the corporation, though not expressly laid upon the corporation itself, is construed as intended to create corporate duties, to be performed by the corporation through the designated instrumentalities as the agents of the corporation. Bieling v. City of Brooklyn, 120 N.Y. 105, 106, 24 N.E. 389. Such has been held to be the nature of the duties of the street department and the park department, in the case of the public streets, the bridges, and the sewers; of the dock department, as respects the docks, and of the Croton water commissioners, on the introduction of Croton water; in all which cases, the city, on similar statutory provisions, has been held liable. See Ehrgott v. Mayor, etc., 96 N.Y. 271, and the cases there cited; Barney Dumping-Boat Co. v. Mayor, etc., 40 F. 50; Philadelphia & R.R. Co. v. Mayor, etc., 38 F. 159.

Upon the numerous cases cited, and the full discussion of the general subject by Earl, J., in Ehrgott v. Mayor, etc. supra; by Folger, J., in Maxmilian v. Mayor, etc., supra; and by Mr. Justice Hunt in the case of Barnes v. District of Columbia, 91 U.S. 540, upon a statute in all respects analogous to the New York statutes prior to the act of 1882 (cited by Earl, J., with evident approval), there seems to me no doubt that the present case belongs to the latter class, and that the...