Summary
In O'Neill v. Gray (30 F.2d 776) in an action against an attorney for his negligent prosecution of an action, the learned Justice AUGUSTUS N. HAND said (pp. 778-779): "An action for malpractice must be commenced within two years after the cause of action has accrued.
Summary of this case from Peters v. PowellOpinion
No. 159.
February 18, 1929.
In Error to the District Court of the United States for the Southern District of New York.
Action by Catherine Gray, as administratrix of the estate of Edward Gray, deceased, against Thomas J. O'Neill. Judgment for plaintiff, and defendant brings error. Affirmed.
This action is brought by Catherine Gray, as administratrix of the estate of her deceased brother, against Thomas J. O'Neill, an attorney at law, to recover damages for his negligent prosecution of her cause of action against the contracting firm of H.H. Vought Co. for the death of her brother, Edward Gray.
The complaint alleges in substance that: The plaintiff had a good cause of action against H.H. Vought Co. for negligently causing the death of her brother on February 16, 1921, while he was working on a building in course of construction by Vought Co. as general contractors, because they failed to light and safeguard a certain stairway, from which Gray fell to his death. The defendant instituted the action in July, 1921, and alleged in the complaint therein that H.H. Vought Co. was a "domestic New York state corporation," whereas in fact it was a copartnership. Of this fact defendant was informed, both by the verification of the answer in September, 1921, and by a letter from the attorney for Vought Co., the defendant therein. The defendant failed to amend the complaint, or serve a new complaint, for more than three years, by reason of which the cause of action became barred by the New York two-year statute of limitation applicable to such cases, and was completely lost.
The answer in the action against H.H. Vought Co. was verified by one of the firm who signed the verification as "Henry H. Vought, partner of H.H. Vought Co." It was accompanied, when served, by a letter by one of Vought's attorneys, advising O'Neill that H.H. Vought Co. was a copartnership, and not a corporation, and was "therefore improperly sued." The letter added: "If you wish to discontinue this action, or correct the error any other way, we will probably be able to help you by consenting."
To this letter a lawyer, Goodwin, associated with O'Neill, replied on October 5, 1921, asking for the names of the copartners, and saying: "We can either stipulate to amend the complaint, or serve a new complaint." No reply was ever received to this letter. Goodwin was of the opinion that the answer amounted to a general appearance on the part of the copartnership, and a holding was secured to that effect in the New York Supreme Court at Special Term, where he was allowed to amend his complaint, so as to set up allegations against the partnership. This ruling was, however, reversed in the New York Appellate Division of the Supreme Court, and the original action completely fell. O'Neill had only applied to amend after the two years allowed by the New York statute, within which to bring suit, had expired.
The present action to recover for loss of Co. was begun in November, 1926, about the plaintiff's cause of action against Vought 3 years and 9 months after February 16, 1923, when the time to sue Vought Co. for damages arising from Gray's death became barred by the New York statute of limitations applicable to such cases. The plaintiff brought it shortly after she learned of the failure of the original action. The plaintiff's witnesses described the situation where the accident occurred, and the accident itself, substantially as follows:
On the 16th day of February, 1921, the deceased was employed as general foreman of Benedict Stone Contractors, a subcontractor doing the stone work in the erection of a building in New York City. There was another subcontractor for the erection of the iron work, and there were subcontractors for various other work in connection with the construction. H.H. Vought Co., who were sought to be held liable in the original action, were the general contractors.
At the time of the accident, the iron work of the building had been completed and cement floors had been installed. The walls had not been completed above the fourth and fifth floors, and around the outside of the upper part of the building, as the walls had not been built, tarpaulins were hung to keep out some of the cold, so that the concrete floors might set properly. The entire building was nine stories high, and at the time of the accident the decedent and various men under him were making ready to hoist a derrick from the fourth floor to the roof. This derrick had been used to hoist the stones which had been laid in the outside wall up to the fourth floor, on which it stood, and it had then become necessary to hoist the derrick itself up to the roof, so that further construction of the outside wall might go on. On the day of the accident, ladders extended from each floor to the next, at openings in the center of the building, except one of them, which had run from the ninth floor to the roof. This had been removed by some workman two days prior to the accident, in order to fill up the opening in that floor.
The iron stairs were incomplete, in that the treads had not been installed and there was nothing to walk on, except the steel frame on which the treads were to be fastened, which was only about an inch and a quarter wide. This skeleton iron stairway had no handrail or guardrail, and apparently it was the only means of access from the eighth floor to the roof. Gray, who had been supervising the raising of the derrick from the ninth floor to the roof after dark on the day of the accident, went up to the roof level about 7:30 p.m., carrying a lantern to give his men light when they should descend the stairway. He said, "Well, we will let it go for to-night," and started to go down. As he was standing on the top floor space of the frame work of the stairway, and was in the act of turning around to descend, he was seen to fall out through the tarpaulins that were alongside of the stairs. He struck the roof of the adjoining building and almost immediately expired.
This cause was tried before Judge Grubb and a jury, and resulted in a verdict for the plaintiff, from a judgment upon which the defendant appeals.
The defendant interposes the following defenses to plaintiff's claim:
(1) If it be regarded as founded on a cause of action for malpractice, it is barred by the two-year statute of limitations.
(2) If it be regarded as founded on a cause of action for negligence, it is barred by the three-year statute of limitations.
(3) If the cause of action be not barred, yet it must fail because the plaintiff has made no case against Vought Co.
(4) If the cause of action be not barred, and the original cause of action against H.H. Vought Co. was established, still there was no proof of negligence on the part of this defendant in his conduct of plaintiff's case.
Thomas J. O'Neill, of White Plains, N.Y. (Charles D. Lewis, of White Plains, N.Y., and Leonard F. Fish, of New York City, of counsel), for plaintiff in error.
Strongman Ward, of New York City (Karl W. Kirchwey, of New York City, of counsel), for defendant in error.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
The first objection raised by the defendant is the statute of limitations. An action for malpractice must be commenced within two years after the cause of action has accrued. New York Civil Practice Act, § 50. This term has been regarded by the courts as embracing unskillful or illegal practice by doctors or dentists, which results in physical injuries to the person. It is coupled in the statute with other purely personal wrongs — "libel, slander, assault, battery, seduction, criminal conversation, false imprisonment, and malicious prosecution." The injured person knows his injury, and may be properly required to decide promptly whether it is serious enough to justify suit. This is the construction which has been adopted by the state courts. Hurlburt v. Gillett, 96 Misc. Rep. 585, 161 N.Y.S. 994, affirmed 176 App. Div. 893, 162 N.Y.S. 1124; Camp v. Reeves, 209 App. Div. 488, 205 N.Y.S. 259, affirmed 240 N.Y. 672, 148 N.E. 753; American Exchange Pacific Bank v. Touche, 131 Misc. Rep. 236, 227 N YS. 218. Under these cases, this statute only applies to wrongs to the person, and does not affect attorneys at law who have negligently conducted a litigation. Furthermore, if "malpractice" were construed to include injuries to property caused by unskillful professional management, many claims, as in this case, would be barred before they were discovered.
It is also clear that the cause of action here is not "to recover damages for a personal injury resulting from negligence" embraced in the three-year statute of limitations provided in section 49 of the New York Civil Practice Act. Section 37-a of the General Construction Law of the state of New York (Consol. Laws, c. 22) defines "personal injury" as including: "Libel, slander, criminal conversation, seduction and malicious prosecution; also an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff, or of another." It is clear from this definition that the present cause of action is not to recover for a personal injury.
The case of Riddle v. MacFadden, 201 N.Y. 215, 94 N.E. 644, where suit was brought, under chapter 132 of the Laws of 1903 of the state of New York, for an injunction and damages, because the picture of the plaintiff had been circulated for commercial purposes without her consent, is relied upon as supporting the contention that the injury here was a personal one, and comes within the three-year statute of limitations. But Riddle v. MacFadden, supra, has no relevancy, for an injury to the statutory right of privacy is plainly personal, while the damage here is to the property of the estate of which the plaintiff is administratrix, in that there has been a loss of a cause of action against H.H. Vought Co. belonging to that estate.
General Construction Law, § 25-a, defines "injury to property" as injury "whereby the estate of another is lessened, other than a personal injury, or the breach of a contract." The present action is either for a breach of the contract of retainer, or for an injury to property. In either case, section 48 of the Civil Practice Act applies, and the period of limitation is six years.
Inasmuch, therefore, as six years had not elapsed between February 16, 1923, when the plaintiff's action against H.H. Vought Co. was lost, and the time when this action was brought, there can be no bar of the statute of limitations, and we must consider whether the plaintiff offered proof which justified submission to the jury of a good cause of action against H.H. Vought Co.
The iron stairs had been erected by the workmen in the employ of a subcontractor, who did the iron work, and not by the general contractor. At common law there would be no liability of an owner to employés of contractors for injuries received upon the premises, where he had turned over the premises to a contractor to construct a building, unless he was guilty of some affirmative act of negligence affecting the safety of such employés. Hexamer v. Webb, 101 N.Y. 377, 4 N.E. 755, 54 Am. Rep. 703; Engel v. Eureka Club, 137 N.Y. 100, 32 N.E. 1052, 33 Am. St. Rep. 692; Burke v. Ireland, 166 N.Y. 305, 59 N.E. 914; Joyce v. Convent Avenue Construction Co., 155 App. Div. 586, 140 N.Y.S. 663.
But a person who has general supervision of a building under construction may well, even at common law, stand in the position of one who can be said to invite workmen necessarily coming upon the premises, whether they be his own or those of a subcontractor. To such persons the general contractor owes "reasonable care to prevent damage from unusual danger which he knows or ought to know." Indermaur v. Dames, L.R. 2 C.P. 311; Litsch v. Todds, Irons Robertson, Inc., 239 N.Y. 559, 147 N.E. 194; Pollock on Torts (12 Ed.) page 516. But, irrespective of this, there was section 18 of the New York Labor Law (Consol. Laws, c. 31), providing that:
"A person employing or directing another * * * in the erection, * * * of a * * * building * * * shall not furnish * * * scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged."
In Quigley v. Thatcher, 207 N.Y. 66, 100 N.E. 596, an employee of a subcontractor fell from an unsafe scaffold that had been installed by the general contractor, when he was using it as the only means to get to his work. The New York Court of Appeals held the general contractor liable for the injuries which this employee sustained by reason of the unsafe scaffold. Doubtless there was a common-law liability, if the general contractors installed such a dangerous scaffolding and foresaw that the subcontractor's men would have to use it. But the court in that case placed the liability upon the section of the Labor Law above referred to. Judge Hiscock, writing the opinion, said:
"We think that when a contractor constructs and so locates a scaffold or platform that his subcontractor must of necessity or under the requirements of reasonable convenience in the performance of his work use the same the contractor may be held to have anticipated such use and to have assumed liability to such subcontractor and his employees for the safety thereof."
He also said that "this statute is one for the protection of workmen from injury and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed, and under such interpretation we think that a contractor may by course of events become liable to a subcontractor and his employees for the safety of a scaffold although originally and expressly he assumed no such responsibility."
It may be said that the scaffold in Quigley v. Thatcher, supra, was built by the general contractor, while here the stairway had been erected by an independent subcontractor. But the general contractor furnished the stairway, when he contracted for it and it was installed pursuant to the contract. He also, like the general contractor in the Quigley Case, in effect directed the employees of the subcontractor to use it when he, having contracted for the construction of the building, ordered the stonework, allowed it to be put up, and knew that the only way the employees of the subcontractor could perform their work was to use the skeleton stairway.
In De Lee v. T.J. Pardy Construction Co., 249 N.Y. 103, 162 N.E. 599, a general contractor, who had supervision of the performance of a construction contract, was held liable to the employee of a subcontractor for the collapse of a scaffold built by the subcontractor, which fell on the workman, because the general contractor had not inspected it and had permitted it to be overloaded. See, also, Litsch v. Todds, Irons Robertson, Inc., supra, where a general contractor was held liable to the employee of a subcontractor in failing to keep lighted the stairways of a building under construction.
Doremus v. Auerbach, 176 App. Div. 512, 163 N.Y.S. 239, affirmed in 223 N.Y. 709, 120 N.E. 861, is relied upon by the defendant. That action was against the owner of the premises, and is distinguishable because there was a safe way to proceed and the employee chose the uncompleted stairway. The Appellate Division said: "It was not necessary for deceased to use this stairway, although it was probably the most direct route to the point to which he was bound."
In the case at bar the general contractor, in his agreement with the owner, was under the duty of "efficient supervision" of the work, and was obliged to keep on it during its progress a "competent foreman." In such circumstances, the jury was justified in finding that the removal of the ladder from the ninth floor to the roof, two days before the accident, was known to the general contractor, and that any stoneworkers having to work on the roof must use the skeleton stairway. The jury might properly determine whether the "mechanical contrivances" — i.e., the skeleton stairway whereby the decedent descended from the roof — were safe and proper, and whether such stairway should have had a guard rail. These questions, as well as those of contributory negligence, were for the triers of the facts.
It was further objected that proof of a custom to use guardrails should not have been allowed. The existence of such a custom was denied, but where truth lay in such a conflict of evidence was for the jury. It was also objected that there was, in any event, no proof that such a custom was uniform. But it did not have to be uniform, as in the case of a custom proved to supplement a contract. The evidence was admitted only to indicate what was a customary standard of care, as bearing on the question of negligence.
Last, it was suggested during the argument that there was no proof of negligence in the management of the litigation by defendant's associate, because there was fair reason to believe that the plaintiff could amend the complaint, so as to recover against the partnership of H.H. Vought Co., because of their appearance in the action. Perhaps the decision of the Special Term, permitting such an amendment nunc pro tunc, tended to bear out this contention. Gray v. H.H. Vought Co., 126 Misc. Rep. 33, 212 N.Y.S. 511. But the point was doubtful, was in the end decided against the plaintiff, and could have been eliminated from the case by prompt action. The Appellate Division reversed the order allowing the amendment, both on the law and because of laches. Gray v. H.H. Vought Co., 216 App. Div. 230, 214 N.Y.S. 765. The Court of Appeals dismissed the appeal by a divided court, because one ground of the decision below involved the exercise of discretion. Gray v. H.H. Vought Co., 243 N.Y. 585, 154 N.E. 615. Skillful conduct involves avoidance of wholly unnecessary risks. We think it was properly left to the jury to say whether the conduct of the litigation was reasonably skillful. Indeed, we understand that the defendant does not seriously question this ruling.
The judgment is affirmed.