p. 40between the defendant and the driver was not that of master and servant, no speed, however excessive, could tend to fasten upon the defendant a liability for the wrong. If the defendant permitted an excessive speed to be maintained, after reasonable opportunity for protest, a jury might find his silence equivalent to approval, and ratification may be equivalent to command. The defendant had a right to restrain the driver who was subject to his orders and he is not exonerated as of course because the driver was not his .servant.
Dowler v. Johnson, 171 App. Div. 935 , reversed.
(Submitted November 20, 1918;decided December 10, 1918.)Appeal from a - judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 13, 1916, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.
The nature of the action and the facts, so far as material, are stated in the opinion.
Herbert C. Smyth, James B. Mackie and Julius M. Lowenstein for appellant.
Defendant was in law liable under the rule of
respondeat superior. (Maxmilian v. Mayor, 62 N. Y. 160 ;
People ex rel. Croker v. Sturgis, 91 App. Div. 286 ;
People ex rel. Clifford v.
Scannel, 74 App. Div. 406 ; 173 N. Y. 606 ;
People ex rel. Hart v.
Fire Comrs., 82 N. Y. 358 ;
People ex rel. Kent v.
Fire Comrs., 100 N. Y. 82 ;
Reed v.
Met. S. Ry. Co., 58 App. Div. 87 ;
Higgins v.
W. U. Tel. Co., 156 N. Y. 75 .) Public officers are liable personally to third persons who are injured by their personal negligent conduct.
(Murphy v.
Comrs. of Education, 28 N. Y. 134 ;
Day v.
Reynolds, 23 Hun, 131 ;
Hartwell v. Riley, 47 App. Div. 154 ;
Bryant v. Town of Randolph, 133 N. Y. 70 ;
Bennett v. Whitney, 94 N. Y. 302 ;
Litchfield v.
Bond, 186 N. Y. 66 .)
William P. Burr, Corporation Counsel (Terence Farley of counsel), for respondent.
A public officer is not liable for the acts or omissions of the official subordinates
p. 41appointed by him or working under his direction, if they are not in his private service, but may themselves be considered as officers of the municipality or state, unless such officer personally directed the performance of the act complained of, or personally co-operated in the negligence from which the injury resulted, if he exercised reasonable care in the selection of the subordinates. (22 Ruling Case Law, 487;
Murphy v.
Emigration Comrs., 28 N. Y. 134 ;
Cardot v.
Barney, 63 N. Y. 281 ;
Donovan v. McAlpin, 85 N. Y. 185 ;
Walsh v.
Trustees, etc., 96 N. Y. 427 ;
Bieling v. City of Brooklyn, 120 N. Y. 98 ;
Bailey v.
Mayor, etc., 3 Hill, 531 ;
Brissac v.
Lawrence, 2 Blatch. 121;
United States v.
Broadhead, 24 Fed. Cas. 1242;
Rubens v.
Robertson, 38 Fed. Rep. 86 ;
Mister v.
Brown, 59 Fed. Rep. 912 ;
Riggin v.
Brown, 59 Fed. Rep. 1006 .)
The defendant in 1913 was the fire commissioner of the city of New York. On March 20 of that year, he left fire headquarters in one of the department’s automobiles to inspect some new fire houses in Brooklyn. The automobile was driven by a fireman assigned to that duty by the commissioner upon the recommendation of the fire chief. While so driven, it collided with another automobile, and the plaintiff was injured. The complaint charges that at the time of the collision the automobile carrying the defendant was driven under his orders, and that it was driven negligently and at excessive speed. The officers and men of the fire department are not exempt from the ordinary limitations in respect of speed, unless they are “ proceeding to a fire ” (Charter of N. Y. sec. 784) or “ responding for emergency work in case of fire, accident, public disaster, or impending danger ” (Code of Ordinances of N. Y. chap. 24, art. 2, sec. 17, subd. 1). The plaintiff’s counsel in opening the case stated that the defendant’s car was
p. 42going at the rate of fifty miles an hour. He was about to offer evidence of the negligence charged when he was checked by a ruling of the court that no matter what the action or negligence of the chauffeur might be, the defendant was not liable. The record is very informal, and the plaintiff’s offer of proof is not as definite as we might wish; but we think there is no doubt.in respect of the ruling which the court intended to make. The court’s view was that because the relation between the defendant and the driver was not that of master and servant, no speed, however excessive, could tend to fasten upon the defendant a liability for the wrong. The complaint was dismissed; and on appeal to the Appellate Division the judgment was affirmed by a divided court.
We think there was error in refusing to give .the plaintiff an opportunity to unfold his case. We see no repugnancy between the complaint and the opening. None certainly can be found in the mere relation that subsisted between the defendant and the driver. We do not doubt the rule invoked by counsel for the defendant, and sustained by superabundant citations, that public officers are not hable for the negligence of their subordinates unless they co-operate in the act complained of, or direct or encourage it (Lane v. Cotton, 1 Ld. Raymond, 646; Bailey v. Mayor, etc., of N. Y., 3 Hill, 531 , 538; Cardot v. Barney, 63 N. Y. 281 ; Robertson v. Sichel, 127 U. S. 507 ; Ely v. Parsons, 55 Conn. 83 ; Story on Agency, sec. 319). That is at least the general rule, and if it is subject to any other qualifications, they are not now material. But here the very question is whether the defendant did direct or encourage the negligent act or personally co-operate in it. Undoubtedly he is not hable for theneghgence of the driver on the theory of respondeat superior. The relation between them was not that of master and servant. If he had been out of the car at the time of the accident, no one would suggest that he
p. 43must answer for the driver’s wrong. Even his presence in the car would be insufficient of itself and in all circumstances to charge him with liability. There must have been command or co-operation (
De Carvalho v. Brunner, 223 N. Y. 284 , 287; 1 Cooley on Torts [3d ed.], pp. 213, 244). But ratification may be equivalent to command, and co-operation may be inferred from acquiescence where there is power to restrain. The charge is that this car was going at the rate of fifty miles an hour. The charge is that it was going under the defendant’s orders. If the defendant permitted such a speed to be maintained, and this after reasonable opportunity for protest, a jury might find his silence the equivalent of approval. Many circumstances would have to be weighed. Chief among them perhaps would be the duration of the offense and the opportunity to restrain it. There was the
right to restrain here, for the driver was subject to the defendant’s orders (Charter N. Y. City, sec. 728); but the right is of no importance unless the omission to exercise it was unreasonable. We cannot say whether the inference of such an- omission is legitimate till the whole story has been told. We must see the whole picture. For the purpose of this appeal, it is enough that the defendant is not exonerated as of course because the man at the ' helm was not his servant. One cannot let oneself be driven at breakneck speed through city streets, and charge the whole guilt upon the driver who has done one’s tacit bidding.
The judgment should be reversed, and a new trial • granted, with costs to abide the event.
His cock, Ch. J., Collin, Cuddeback, Pound, Crane and Andrews, JJ., concur.
Judgment reversed, etc.