Opinion
May 22, 1910.
Norman S. Goetz of counsel [ William L. Cahn with him on the brief], Leventritt, Cook Nathan, attorneys, for the appellant.
Jacob C. Brand of counsel [ Herman B. Goodstein, attorney], for the respondent.
The plaintiff sues to recover damages for the death of his decedent, caused, it is alleged, by the negligence of the defendant, his employer, on August 3, 1909. The complaint contains allegations appropriate to an action under the common law as well as to an action brought under the Employers' Liability Act. Paragraph VIII thereof is as follows: "That heretofore and prior to the commencement of this action, the plaintiff duly caused notice of the time, place and cause of said injuries and death to be given to the defendant pursuant to the statute in such case made and provided."
The defendant moved for an order requiring that the complaint be made definite and certain in the following particulars: "I. So that it shall set forth plainly either a cause of action based on the defendant's common-law liability, or one based on defendant's statutory liability. II. So that paragraph VIII of the complaint shall set forth in place of the word `duly,' the date on which the plaintiff claims to have served notice upon the defendant of the time, place and cause of his intestate's death. III. Or if the plaintiff desires to set forth two causes of action, one based on the defendant's common-law liability and the other based on the defendant's statutory liability, that the plaintiff separately state and number said causes of action." Said motion having been denied, defendant appeals.
It seems to me to be clear that the Employers' Liability Act (Laws of 1902, chap. 600; Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14) gives a new cause of action. It is entitled, "An Act to extend and regulate the liability of employers to make compensation for personal injuries suffered by employees." It is provided in section 200 of the Labor Law that the employee "shall have the same right of compensation and remedies against the employer as if the employee had not been an employee." Again, in section 201, it is provided, "no action for recovery of compensation for injury or death under this article shall be maintained unless notice * * * is given * * * and the action is commenced within one year * * *." Again, in section 202, "an employee * * * shall not be entitled under this article to any right of compensation or remedy against the employer in any case where * * *," and in section 203 it is provided that an employer who contributes to an insurance fund may set up the fact of such contribution in "mitigation of damages recoverable by an employee under this article."
The evident purpose of the entire statute is to give the servant a right of compensation entitling him to a cause of action which he did not formerly possess. In Harris v. Baltimore Machine Elevator Works ( 188 N.Y. 141) GRAY, J., said: "It gave an additional cause of action, because it prescribed that a master shall be liable for the negligence of the superintendent, or the person acting as such. ( Gmaehle v. Rosenberg, 178 N.Y. 147.) At common law such a liability was not recognized, unless the superintending servant was the alter ego of the master with respect to the work." That case is cited with approval and the foregoing language quoted verbatim in Guilmartin v. Solvay Process Co. ( 189 N.Y. 490) and Gallagher v. Newman (190 id. 444). (See, also, Kleps v. Bristol Mfg. Co., 189 N.Y. 516.)
In Davis v. Broadalbin Knitting Co. ( 90 App. Div. 567; affd., 185 N.Y. 613) the court said: "Irrespective of whether or not an employee still retains his right to bring a common-law action for injuries against his employer, notwithstanding the Employers' Liability Act, if he chooses to bring his action under that act his proofs must establish a cause of action thereunder. He cannot plead within the precise terms of the act and then be permitted to prove, if seasonable objection be made, acts of negligence wholly outside his complaint."
Chisholm v. Manhattan R. Co. ( 116 App. Div. 320); Curran v. Manhattan R. Co. (118 id. 347); Simpson v. Foundation Co. (132 id. 375); Bertolami v. United Engineering Contracting Co. (Id. 804), and the many cases there reviewed, establish the proposition that a new cause of action has been given by this legislation.
In Welch v. Waterbury Co. ( 136 App. Div. 315) Mr. Justice WOODWARD said: "There is no such thing as a blending of a common-law action for negligence resulting in personal injuries and an action under the Employers' Liability Act; portions of a common-law action cannot be pieced out with the provisions of the Employers' Liability Act and produce a good and valid judgment, and that is exactly what has been attempted here. It is true that both a common-law action and an action under the Employers' Liability Act may be pleaded, and it may be that in the absence of a demand for an election the plaintiff is not obliged to say on which cause of action he is proceeding, but we believe no case has yet held that a common-law action, pleaded and tried as such, is entitled to the benefits of the special rules laid down for controlling actions under the Employers' Liability Act."
It seems to me that while it is true that the plaintiff is entitled to but one recovery for the damages sustained, and that that recovery depends upon the responsibility of the defendant for the death of his intestate, this fact does not negative the possibility of stating two causes of action therefor, based upon different evidence and controlled by different provisions of law. The action under the Employers' Liability Act must be brought within one year, and a condition precedent is the serving of the prescribed notice within the required time. The complaint at bar avers that such a notice was duly served. The date of such service being material, the motion to make the complaint definite by stating the date of such service should have been granted. If thereupon it should appear not to have been served within the time limited by law, and the defendant should demur upon the ground that the complaint did not state facts sufficient to constitute a cause of action, it would be at once met with the answer that irrespective of the statute the complaint at bar sets up facts sufficient to constitute a cause of action under the principles of the common law. It seems to me that no possible harm can come to the plaintiff by requiring him to separately state and number his two causes of action. Such a pleading no more offends than a complaint setting up a demand for a specific sum of money under one count upon contract and upon another on a quantum meruit. We are aware that the Appellate Division in the Second Department has held to the contrary in Acardo v. New York Contracting Trucking Co. ( 116 App. Div. 793), but as the learned justice who wrote that opinion was the author of the opinion in Welch v. Waterbury Co. ( supra), where he says, "There is no such thing as a blending of a common-law action for negligence resulting in personal injuries and an action under the Employers' Liability Act," we are persuaded that if that matter were to come again before that learned court it would follow the logic of its later decision and require upon motion the separate statement of the two causes of action. We believe such to be the proper practice and that it will tend to clearness and precision in the submission of the controversy.
The order appealed from, therefore, should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
INGRAHAM, P.J., LAUGHLIN, SCOTT and MILLER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.