150 N.Y.S. 992 | N.Y. App. Div. | 1914
The complaint alleges, in substance,' that the defendant is a corporation organized under the laws of the State of Georgia and engaged in the operation of a railroad in the city of Augusta' in that State; that in September, 1912, a strike existed between the defendant and its employees and while the same was in progress one Irving A: Lichtenstern was employed by the defendant as a motórman on one of its cars; that he accepted;the empldyment'up'on. the assurance and undertaking that hevrould be"protected;and saved "harmless by- the defendant from all loss, injury, damage and liability-; that-he was assaulted-by strikers--while-engaged in" the- furtherance of the business" "of- the "defendant" and- -".his" death" resulted-from the injuries received; "that" the assault occurred ‘J without provoca
A cause of action to recover damages for the death of a person does not exist at common law; it is wholly statutory (Debevoise v. N. Y., L. E. & W. R. R. Co., 98 N. Y. 377; Duncan v. St. Luke’s Hospital, 113 App. Div. 68) and depends upon the statute of the State where the death was caused. (Debevoise v. N. Y., L. E. & W. R. R. Co., supra; Gurofsky v. Lehigh Valley R. R. Co., 121 App. Div. 126.)
It is fairly to be inferred from the allegations of the complaint under consideration that the death occurred in the State of Georgia, and whether plaintiff is entitled to recover upon the facts set forth depends upon the construction to be put upon the statute of that State giving a right of action in case of death.
“Sec. 3828. Recovery for homicide, when. * * * A mother, or, if no mother, a father, may recover for the homicide of a child minor or sui juris, upon whom she Or he is dependent, or who contributes to his or her support, unless said child leave a wife, husband or child. * * *
“Sec. 3829. Definition of terms in preceding section. The word ‘homicide,’ used in the preceding section, shall be held to
The question presented, therefore, is whether the complaint alleges that the deceased came to his death through the negligence of the defendant within the meaning of the statute above quoted. In the absence of any authority to the contrary it must be assumed that the statute uses the word “negligence” in its ordinary legal sense. (Duncan v. St. Luke’s Hospital, supra; Singleton v. Felton, 101 Fed. Rep. 526.) Putting this construction upon the statute, I am of the opinion that the complaint does not state a cause of action. It contains no allegations to the effect that the defendant failed to use reasonable care to protect the deceased, and that was, of course, the extent of its obligation. There is no common-law duty on the part of an employer to protect his employees from assault by strangers. It is true that the defendant is alleged to have agreed, at the time the deceased was employed, that he “ would be protected and saved harmless from all loss, injury, damage and liability,” but defendant’s failure to perform this contract obligation does not, in itself, constitute negligence. Nor are there any allegations in the complaint to the effect that the defendant was negligent in the performance of its contract. From all that there appears defendant may have exercised a very high degree of care in the protection of the deceased. In this respect the case at bar is clearly distinguishable from Duncan v. St. Luke’s Hospital (supra; affd., 192 N. Y. 580), upon which the respondent relies.
The mere breach by defendant of its contract obligation, assuming that such breach existed, cannot be made the basis of an action in tort for decedent’s death. (Rich v. N. Y. C. & H. R. R. R. Co., 87 N. Y. 382; Stelz v. Van Dusen, 93 App. Div. 358; Lewis’ Admr. v. Taylor Coal Co. of Ky., 112 Ky. 845.) In the Lewis case the facts were quite similar to those set out in this complaint. There, a large number of employees of defendant, who were union men, were on a strike, and nonunion employees were frightened from continuing in defendant’s employ by threats of the strikers. Plaintiff’s intestate, a non-union man, was threatened and communicated that fact
It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave to plaintiff to serve an amended complaint upon payment of costs in this court and in the court below.
Clarke, Laughlin, Scott and Hotchkiss, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to plaintiff to amend complaint on payment of costs in this court and in the court below.
Sée Code of Georgia, 1910, §§ 4434, 4435 (3838, 3839).— [Rep.
See Kentucky."Statuíhs¡.:Í9D9, §§.6’ ÍO.— [Rep. i.