108 N.E. 217 | NY | 1915
Lead Opinion
This is an action to recover damages for negligently causing the death of the plaintiff's intestate. The complaint does not show that the action was commenced within two years after the death of the decedent. The courts below have held that it is essential to the maintenance of such an action as this that it must appear upon the face of the complaint that it was commenced within two years after the decedent's death; and that the omission of an allegation to that effect is fatal on demurrer. The only question presented by the appeal is whether this ruling is correct.
The present Constitution of the state of New York, adopted in 1894, contains the following provision: "The right of action now existing to recover damages for injuries resulting in death, shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation." (Constitution, art. I, § 18.)
The action thus preserved by the fundamental law is provided for in section 1902 of the Code of Civil Procedure. The portion material to be considered reads as follows: "The executor or administrator of a decedent, who has left him or her surviving, a husband, wife, or next of kin, may maintain 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 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."
As is well known, this legislation had its origin in the English statute known as Lord Campbell's Act, enacted by parliament in 1846; and, as has repeatedly been pointed out, it gave rise to an entirely new cause of action *104 unknown to the common law. Similar statutes now exist in most, if not all, the states of the Union. The original New York statute was passed on the 13th of December, 1847. (L. 1847, ch. 450.) The first section provided that whenever the death of a person should be caused by wrongful act, neglect or default, which would have entitled the party injured (if death had not ensued) to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable, if death had not ensued, should be liable to an action for damages notwithstanding the death of the person injured, and although the death should have been caused under such circumstances as amount in law to a felony.
The second section read as follows:
"Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in proportions provided by law in relation to the distribution of personal property, left by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death to the wife and next of kin of such deceased person;provided that every such action shall be commenced within two years after the death of such deceased person."
It will be observed that the limitation of time in the act of 1847 was put in the form of a proviso.
The law continued substantially as thus enacted until 1880, when the statutory provisions relating to actions for wrongfully or negligently causing death were transferred into the Code of Civil Procedure where they now appear as sections 1901 to 1905 inclusive. This transfer, however, was accompanied by a change of phraseology, *105 so far as the limitation of time is concerned, which I deem of controlling importance in the question under consideration upon this appeal. The time limitation no longer appeared as a proviso; the words "provided that" were omitted; and the clause was made to read merely "Such action must be commenced within two years after the decedent's death."
I cannot agree that this constitutes a mere change of language without any change in meaning or effect. The nature of a proviso has long been well understood by legislators as well as lawyers, and I think we should not be justified in holding that the omission of the words "provided that," which were contained in the act of 1847 was unintentional or ineffectual. Assuming, as I do, that so long as the time limitation remained a proviso it related to the right rather than the remedy, I think there were reasons which might well have influenced the legislature to make a change in the law in this respect. The right of action to recover damages for wrongfully causing death which has since been made a constitutional right by the action of the people, was thereafter to be provided for and regulated, not in a separate statute, but in a general statute designed to be a permanent part of our system of jurisprudence. Suits to enforce it had ceased to be special and peculiar. They had become a familiar feature in the business of our courts. No good reason existed why the benefit of the general exceptions given by law to the parties against whom the bar of the Statute of Limitations is invoked should not be given to plaintiffs in this class of cases; and it seems to me that it is not going too far to suppose that this consideration may have led to the alteration in the language of the statute. At all events the time limitation as to actions of this sort ceased to be a proviso and has become a simple requirement that suit shall be begun within two years. Although its form is in no wise different from that of an ordinary statute of limitations, we are asked to hold that the provision *106 is so indissolubly bound up with the right as to oblige the plaintiff to plead compliance therewith in order to state a good cause of action.
I cannot think that this is necessary in view of the form which the statute assumed upon its incorporation into the Code. It must be conceded that our courts of intermediate appeal have held that the time prescribed by the statute within which the action must be commenced is of the essence of the right to maintain the suit and not a mere statute of limitations (Colell v. D., L. W.R.R. Co.,
But whatever may be the view which has found acceptance in other jurisdictions, the question presented by this appeal is an open one in this court unless we are foreclosed by what was decided in the two cases which afford the strongest support for the position of the respondent, namely, Hill v. Supervisors
(
It is to be noted that the trend of our adjudications has long been in the direction of broadening the scope and operation of the general rules regulating limitations which are embodied in the Code of Civil Procedure. In Conolly v. Hyams (
It seems to me that similar considerations to those which influenced the action of the court in the two cases last cited, in addition to the argument based upon the change from the original form of a proviso, should lead us take a similar view of the clause presented for consideration upon this appeal, and that we should hold that it is a limitation upon the remedy and not upon the right. To affirm the judgment under review would be to require that, in every suit brought to recover damages. for negligently or wrongfully causing death, the complaint must allege that the action had been brought within two years after the decedent's death. It would plainly be impossible to comply with this requirement unless the summons was served before the complaint was prepared; as otherwise it would be impossible to allege truthfully in the complaint that the action had been commenced. This difficulty was pointed out by Mr. Justice THOMAS in Pernisi v. Schmalz' Sons, Inc. (
For the reasons which have been stated, I advise a reversal of the judgment.
Dissenting Opinion
The plaintiff contends that the two-year period of time provided by the statute in which the action must be commenced is a statute of limitations with all of the conditions and exceptions contained in chapter 4 of title 2 of the Code of Civil Procedure. The defendants contend that the time within which the action must be brought operates as a limitation on the liability itself and cannot be extended in any way by circumstances or by the parties or either of them.
If it was intended by the statute to give two years in which to bring the action therein provided and make such period of time an integral part of the right to maintain the action, its commencement within such time becomes a condition precedent to the maintenance of the action and the plaintiff should affirmatively plead and prove that the action was commenced within such prescribed limit of time. (Debevoise v. N.Y., L.E. W.R.R. Co.,
Under the common law there was no right of action for injuries resulting in death arising from a wrongful act. A personal cause of action for injuries ceases to exist with the death of the person injured.
In 1846 the act known as Lord Campbell's Act was passed in England which began by declaring that "No action at common law is now maintainable against a person who by his wrongful act, neglect or default may have caused the death of another person and it is oftentimes right and expedient that the wrongdoer in such case should be answerable in damages for the injuries so caused by him."
The act provided for a recovery of damages against the *112
wrongdoer in favor of persons pecuniarily injured by reason of a death caused by a wrongful act. In 1847 an act was passed in this state (Laws of 1847, chapter 450) which provided for the recovery of damages by a party injured against a person or corporation causing the death of a person by wrongful act, neglect or default. That act concludes with the words, "Provided that every such action shall be commenced within two years after the death of such deceased person." That act remained in force with some amendments not now of importance until it was substantially embodied in the Code of Civil Procedure in 1880 (sections 1902-1905). (Matter of Meekin v. B.H.R.R. Co.,
There is no reason from which to conclude that the legislature intended in 1880 to change the provision relating to the time within which the action shall be commenced from one constituting a part of the substance of the right to maintain the action to a mere limitation on the remedy.
Very soon after the passage of the act of 1847 the action ofWhitford v. Panama R.R. Co. was commenced. It is reported in this court in
Statutes have been passed in all or nearly all of the states of the Union to the same general effect as the present Code provisions in this state mentioned. The statutes creating the right of action in most cases provide in express terms within what time the action shall be commenced. There is substantial although not absolute unanimity in the authorities of this and other states holding that the time provided by the statute in which the action must be commenced is of the essence of the right to maintain the action and not a mere statute of limitations.
It does not seem advisable to extend this opinion as would be necessary to quote the statutes of the different states and from the many decisions involving the question under consideration. With the exception of Hoffman v. D. H. Co. (
The following authorities from other states hold in substance that at the end of the time provided by statute the right to maintain the action which is wholly derived from the statute comes to an end. (Martin v. Pittsburgh Railways Co.,
227 Penn. St. 18; Lambert v. Ensign Mfg. Co.,
To the same substantial effect are the following Federal authorities: The Harrisburgh (
The cases in this state relied upon by the appellant, viz.,Ackerman v. Ackerman (
The weight of authority, it seems to me, is so overwhelmingly in accord with the conclusion reached in this case by the Special Term and Appellate Division that I am of the opinion that the judgment should be affirmed. If the people desire to change the statute as it has been so many times interpreted it can be readily done by the legislature.
HOGAN, MILLER, CARDOZO and SEABURY, JJ., concur with WILLARD BARTLETT, Ch. J.; COLLIN, J., concurs with CHASE, J.
Judgment reversed, with costs, and demurrer overruled, with leave to defendants to withdraw demurrer and serve answer within twenty days. *116