MARY CRAPO, as Administratrix of the Estate of HENRY CRAPO, Deceased, Appellant, v. THE CITY OF SYRACUSE, Respondent.
Court of Appeals of New York
January 23, 1906
183 N.Y. 395
Argued December 14, 1905
2. CAUSE OF ACTION DOES NOT ACCRUE UNTIL APPOINTMENT OF EXECUTOR OR ADMINISTRATOR. The cause of action, however, does not accrue until the appointment of the executor or administrator, and, therefore, where an administratrix was not appointed until over sixteen months after the death of her decedent, the filing of the statutory notice within two months and commencement of the action within five months thereafter is a sufficient compliance with the requirements of the statute.
Crapo v. City of Syracuse, 98 App. Div. 376, reversed.
(Argued December 14, 1905; decided January 23, 1906.)
APPEAL from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 15, 1904, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial and granted a new trial.
The nature of the action and the facts, so far as material, are stated in the opinion of O‘BRIEN, J.
Thomas Hogan for appellant. An action to recover for death loss is not an action for personal injuries, but a new cause of action given by statute. (Matter of Meekin v. B. H. R. R. Co., 164 N. Y. 145; Whitford v. P. R. R. Co., 23 N. Y. 465; Snedecker v. Snedecker, 164 N. Y. 58; Louisville
Walter W. Magee for respondent. No notice of the intention to commence an action herein was filed with the corporation counsel within six months, nor was the action begun within one year, from the time the cause of action accrued. (
CULLEN, Ch. J. Though I concur in reversing the order of the Appellate Division and in the affirmance of the judgment of the trial court, I am of opinion that the action is one for personal injuries within the meaning of
I am of opinion, however, that the plaintiff‘s cause of action did not arise until her appointment as administratrix for the reason stated by Justice BRADLEY in Barnes v. City of Brooklyn (22 App. Div. 520), and that, therefore, the notice required by the statute of 1886 was seasonably served and the action seasonably brought. If the results which follow that construction of the law of 1886 were such as suggested in the dissenting opinion written on this appeal, I think they would constitute a strong objection to that interpretation, but I am of opinion that no such results can follow. The limitations provided in the law of 1886 are not substitutional for the provisions of the Code, which are in no respect repealed, but cumulative. An action for personal injuries against a city of more than fifty thousand inhabitants must be brought in compliance not only with the statute of 1886 but with the provisions of the Code.
The intestate was killed while in the service of the defendant by an explosion of dynamite on the 22d of December, 1899. The plaintiff was appointed administratrix on the 8th day of May, 1901. This action was commenced on the 9th day of December, 1901, and the notice required by statute to be served was not filed with the corporation counsel until the 25th day of June, 1901. It will be seen, therefore, that the statutory notice was filed with the defendant‘s counsel within two months after the plaintiff‘s appointment as administratrix. The action was commenced within twenty months after the accident and death and within five months after letters were issued.
The learned court below held that the notice of the plaintiff‘s claim was served too late and that the action was not commenced in time, and so, for both reasons, the plaintiff‘s right to commence the action was barred by statute. All this is deduced from a construction of the statute,
“No action against the mayor, aldermen and commonalty of any city in this state having fifty thousand inhabitants or over, for damages for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen and commonalty, or of any department, board, officer, agent or employee of said corporation, shall be maintained, unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action and of the time and place at which the injuries were received shall have been filed with the counsel to the corporation or other proper law officer
thereof within six months after such cause of action shall have accrued.”
It will be seen from a careful reading of this statute that it relates only to actions for damages for personal injuries. It will also be seen that the limitation commences to run within six months and one year, respectively, after the cause of action shall have accrued. The learned court below has held that this is an action to recover damages for a personal injury, and also that the limitations commenced to run, not from the time that the plaintiff was appointed administratrix, but from the time of the death of her husband. So that if, for any reason, administration cannot be obtained until more than six months after the death of the intestate, the action is barred and there can be no recovery. I think that both of these propositions are founded upon a legal error and upon an extreme and unwarranted construction of the statute.
This action was unknown to the common law, and is purely a creation of statute. The common law never designated such a case as an action for personal injuries, nor has any statute ever called it by that name, or treated it as such. It is defined by the Code as an action to recover damages for a wrongful act, neglect, or default, by which the decedent‘s death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued. Such an action must be commenced within two years after the decedent‘s death. (
It is equally clear, it seems to me, that the cause of action in this case did not accrue until the appointment of the plaintiff as administratrix. By
In the opinion of the learned court below some cases are cited from the courts in this state as in support of a contrary proposition. These cases have been carefully examined and it is perfectly safe to say that none of them touch the question in this case. In none of them was the question in this case at all involved. One of the authorities cited is a recent
But the decisions in this state are clear and cover the precise point. In Barnes v. City of Brooklyn (22 App. Div. 520) the question as to the time when a cause of action accrued under this statute was involved, and it was not embarrassed by any other question in the case. It arose upon a demurrer, and so the controversy was reduced to a pure question of law. The opinion of the court was delivered by Justice BRADLEY, formerly a member of this court, and it bears upon its face the evidence of that careful research and examination and deals with the question throughout with that discrimination and broad common sense for which he was so justly distinguished. I am not able to make any argument on this question that would present it in a more clear and simple light. The learned judge commences by inquiry as to the meaning of the word “accrue,” as found in the law dictionary, and he pursues the inquiry through the earlier
But the learned counsel for the defendant, upon the argument in this court, has attempted to sustain the judgment upon certain exceptions which are found in the record and which do not appear to have been noticed by the court below at all. This court ought not, I think, to go out of its way to sustain a judgment upon some debatable point that was not considered or passed upon by the court below. The exceptions in this case rest entirely upon the ruling of the trial court refusing to nonsuit the plaintiff. In other words, this branch of the argument must assume that there were no questions in the case to submit to the jury. It will be noted that most of the grounds stated by counsel in his motion for a nonsuit were so general that they presented no question of law in this court, or they were of such a character that the questions presented were for the jury. A motion for a nonsuit is ineffectual to raise any question in this court, unless the grounds upon which it is based are specified. The defect in the plaintiff‘s case should be pointed out so that he may supply it if he can. (Gerding v. Haskin, 141 N. Y. 514, 520; Sterrett v. Third Natl. Bank of Buffalo, 122 N. Y. 659; Quinlan v. Welch, 141 N. Y. 158; Booth v. Bunce, 31 N. Y. 246; Binsse v. Wood, 37 N. Y. 526; Thayer v. Marsh, 75 N. Y. 340; Ross v. Caywood, 162 N. Y. 259.) There are numerous grounds stated in the motion for a nonsuit in this case, but only two of them raise any question of law for
The defendant cannot prevail in this court without showing that there was absolutely no evidence to submit to the jury on these propositions. The question in this case was not that the deceased was ignorant of the danger incident to the general use of dynamite as an explosive in blasting, but whether he was ignorant of the method of thawing it out when frozen, and if he was, whether the master gave him any instructions as to the method adopted and which resulted in his death. The precise issue which the plaintiff presented was that her husband was set to work by the defendant, not in firing off and exploding dynamite, but in thawing it out and preparing it for use, a work he had never been engaged in before and by a process with which he was unfamiliar, and that he received no instructions from the master or any one else as to the danger involved, or as to the means of guarding against it.
The law applicable to such an issue of fact is perfectly plain and was presented to the jury by the learned trial judge in substantially the language of the authorities. “The master must, therefore, give notice to his servants of all perils to which they will be exposed, other than such as they should, in the exercise of ordinary care, have foreseen as necessarily incidental to the business, in the natural and ordinary course of affairs, though more than this is not required of him. It makes no difference what is the nature of the particular peril, or whether it is or is not beyond the master‘s control. Thus the master is responsible for his omission to warn his servant against the risk of a felonious attack upon him, by the master‘s enemies, if he was himself aware of the danger. And it is not enough for the master to use ordinary care and pains to give such notice. Ordinary care requires
It has already been observed that the only question presented to the jury was the question arising upon this rule of law. The evidence in the case upon the part of the plaintiff was substantially without a conflict as to the fact that the deceased was set to work thawing out dynamite, having had no experience whatever at that work. It would be useless, I think, to argue that there was no evidence for the consideration of the jury on that point. As to the contributory negligence of the deceased there is no evidence in the record that would warrant the trial judge in taking that question from the jury. The only basis for imputing contributory negligence to the deceased is to be found solely in the fact that he obeyed the master‘s representative in engaging in a work that he was ordered to perform, but as to which he was without any experience. It is quite unnecessary to argue that such conduct on the part of the servant does not constitute con-
The perusal of this case will show how frequently human life is sacrificed for want of a little care and foresight and, possibly, a little extra expense. The proof tends to show that there were at least three methods of thawing out dynamite. The safest and most simple method in general use, suggested by the evidence, was to bury the dynamite in a heap of manure and pour hot water on it once. The heat and moisture would then extract the frost and render the explosive fit to handle and use. Instead of doing that the master in this case improvised what is called a sheet-iron furnace, old, rotten and broken, without either top or bottom. Then placing the dynamite in a pail inside and kindling a fire outside the furnace, with apparently nothing to keep the excessive heat and flames from the dynamite, with such a plan of doing such dangerous work an explosion was almost certain to occur. It does not, I think, require an expert to see that if the plan of burying the dynamite in a heap of manure had been adopted
There does not seem to be any other question in this case that calls for notice and so the order of the Appellate Division should be reversed, with costs in all courts, and the judgment of the trial court affirmed.
VANN, J. (dissenting). If the meaning of words used in a statute is doubtful, the result which will follow a particular interpretation may be considered in ascertaining the legislative intent. In the case before us the controversy arises over the meaning of the words “after the cause of action therefor shall have accrued” contained in
Assume that twenty years ago a person was killed owing to the negligence of the defendant, or of any other municipality of its class; that no claim was made against it by the husband, wife or next of kin for the damages resulting from the death, and that for this reason no investigation was made by the corporation as to its liability. Is it possible that at this late day an administrator of the estate of the decedent may be appointed, the notice served and an action maintained on account of such negligence? The illustration, while extreme, is justified, if the appellant‘s contention is sound.
For the purpose of illustration assume that John Doe was killed through the negligence of a municipality over twenty years ago. Nothing was said to its officers about the death and no notice was given of any claim that it was liable on account of the death. Twenty years later an administrator was appointed, the notice served, an action brought, the case tried and it was found that the value of the life was $5,000. If the construction contended for by the appellant is correct, the recovery would be more than doubled because of the interest which had accrued. In other words, the city would be compelled to pay interest at six per cent for a period of twenty years upon a claim of which it had never heard, interest at that rate for that length of time upon a cause of action which
These observations bear upon the question as to what the legislature intended by the words “after the cause of action therefor shall have accrued.” These words, in substance, appear in almost every section of the regular statute of limitations, for which the act in question is a substitute as to the action authorized thereby. They appear in the provisions fixing the period of limitation at twenty years, ten years, six years and so on. (
It seems to me that the legislature, in passing an act to protect cities from stale or doubtful claims, could not have intended a result so unjust to the very class they sought to shield. There is no middle ground as to the question involved. If the appellant is right, she might have waited twenty years before applying for letters of administration, or until every fact relating to the accident which might have been shown by the city had been forgotten, or the witnesses had died, and
It has generally been assumed by the bar and the public that old claims against a city for damages owing to death from its negligence many years ago cannot now be enforced. If, however, the contention of the appellant is to prevail, I can see no reason why an administrator may not now be appointed, the notice given and an action maintained, regardless of the date of the death. That would be a bad result, and it suggests a wrong construction of the statute. The interpretation of the act given below, on the other hand, is reasonable, just and works harm to no one. Immediately upon the death of a person caused by the negligence of a city, any one of those interested in the recovery of damages therefor may apply for the appointment of an administrator to bring an action. They need not wait a week. Usually they do not. Ample time is given for the service of the notice required to enable the city to investigate the claim, and, if it is found to be just, to settle, but if it is found to be unjust, to prepare to defend. This construction causes injustice to no one, gives effect to the spirit of the statute, and, as it seems to me, is in clear accord with the intention of the legislature when it used the words “after the cause of action therefor shall have accrued.”
Again,
It is, however, claimed that two periods of limitation apply to causes of action such as the one before us, the first, of one year, depending upon the date when the cause of action accrued, and the second, of two years, depending upon the date of the decedent‘s death. (
I vote for affirmance.
GRAY, J. (dissenting). I vote for affirmance. Upon the merits of the case, I think no negligence was shown in the defendant. If the accident was not due to the intestate‘s negligence, it was chargeable to the fault of a fellow-servant, in a detail of the work.
As to the construction of the statute, I agree with Judge VANN that the cause of action accrued upon the death of the intestate. I think this construction is required and is justified, when the provision of the Code contained in section 1902 is read in connection with section 380 and the sections following. The case comes within the class of personal injuries and is controlled by section 1902, which prescribes a limitation of two years after the death for the commencement of the action. The words of the statute of 1886, in question, should be given that meaning, which accords with their sense as used in sections 380 to 388 of the Code, with the special limitation of section 1902 and with the obvious intention of the legislature to protect the municipality from stale claims.
Ordered accordingly.