Clapp, Goldmann and Ewart. The opinion of the court was delivered by Clapp, S.j.a.d.
This case, laying before us some fundamental questions on municipal liability for torts, was dismissed as against the defendant, City of Newark, at the close of plaintiffs' case. Plaintiffs appeal.
The plaintiff, Mrs. Gladys Kelley, was kicked by a horse which was tethered, and unattended, in a driveway, perhaps 35 feet in width, leading to a private auto parking lot. The horse, owned by the city and assigned to Officer Curtiss of the mounted police, had, for 20 minutes to an hour, daily, for over a year, been left by him there in this fashion. For over a year too, Mrs. Kelley had been parking her car there daily and, with Curtiss' knowledge, been feeding the horse sugar or candy three or four times a week. She had just done this when she was kicked.
Five months before, the horse while tethered in the lot, and unattended, had kicked another passerby (we of course, on a motion to dismiss, are concerned with those inferences from the evidence, which favor the plaintiff). Of this incident the passerby made a report to the police, and a transcript thereof formally drawn by an officer and bearing a lieutenant's signature, is in evidence. More important, Curtiss made out his own report of the incident to the police inspector, to whom he made all his reports. Whether these reports of his reveal his practice of parking the horse there unattended, we do not know.
Plaintiffs' entire position is this. A municipality will be held for tortious conduct in a governmental function, in two situations only: first, where the conduct is not punishable by indictment; or second, where, even if so punishable, it constitutes active wrongdoing. Here, plaintiffs say, you are faced with both situations.
The first branch of this thesis may -- if you look back for the origin of it -- be laid to some remarks of Chief Justice Beasley uttered in his forceful manner in Jersey City v. Kiernan , 50 N.J.L. 246 (Sup. Ct. 1888). He seems to have founded his decision there upon the proposition that civil relief should be afforded whenever "an indictment will
not lie" -- that is, whenever the breach of duty is altogether private in character; for otherwise, he says, the one "damnified is remediless." However, he confined what he had to say, to a private nuisance. For a comprehensive and illuminating discussion of other phases of the point, indeed of this whole matter, see Joseph Weintraub and Milton B. Conford, Tort Liability of Municipalities in New Jersey , 3 Mercer Beasley L. Rev. 142 (1934).
The only decision which seems to push this broad proposition of the Chief Justice to the full reach of its logic into the field of negligence is Olesiewicz v. Camden , 100 N.J.L. 336 (E. & A. 1924), the case on which plaintiffs rely. However, doubt was thrown upon the case in certain respects by Allas v. Rumson , 115 N.J.L. 593, 599 (E. & A. 1935).
Other cases which rely upon the Kiernan case have to do with nuisances or wrongs arising from a use of real property, or of a building thereon or sewers which may be said to be a part thereof. Waters v. Newark , 56 N.J.L. 361 (Sup. Ct. 1894), affirmed 57 N.J.L. 456 (E. & A. 1894); Hart v. Board of Freeholders of Union , 57 N.J.L. 90 (Sup. Ct. 1894); Murphy v. Borough of Atlantic Highlands , 77 N.J.L. 452 (Sup. Ct. 1909); Bisbing v. Asbury Park , 80 N.J.L. 416 (E. & A. 1910); Caruso v. Town of Montclair , 88 N.J.L. 405 (Sup. Ct. 1916), affirmed 90 N.J.L. 255 (E. & A. 1917); Buckalew v. Board of Chosen Freeholders of Middlesex , 91 N.J.L. 517 (E. & A. 1918); Johnson v. Board of Ed., Wildwood , 102 N.J.L. 606, 611 (E. & A. 1926); Allas v. Rumson , 115 N.J.L. 593 (E. & A. 1935), supra; Bengivenga v. Plainfield , 128 N.J.L. 418 (E. & A. 1942); cf. Casey v. Bridgewater Twp. , 107 N.J.L. 163 (E. & A. 1930).
At any event, any endeavor to apply the Kiernan doctrine to a matter of negligence, as distinguished from one of nuisance, can hardly be sustained at this day. Indeed, the very decisions upon which the plaintiffs rest their claim on the second branch of the case, destroy the first branch of it. Kress v. City of Newark , 8 N.J. 562, 573 (1952); Milstrey v. Hackensack , 6 N.J. 400, 408 (1951). These
decisions hold a municipality accountable for negligence in connection with a public duty, only in a case of active wrongdoing directed or participated in by the municipality. See, too, Lydecker v. Board of Chosen Freeholders of Passaic , 91 N.J.L. 622, 628 (E. & A. 1918), stating, as to negligence, that "the common-law of liability is confined to active wrongdoing"; and Ansbro v. Wallace , 100 N.J.L. 391, 393 (E. & A. 1924), holding active wrongdoing to be the "only" exception to the rule of municipal immunity with respect to negligence. It makes no difference in a matter of negligence that the injury is not of a public character. The Kress case was one of private injury; it ...