Alfson v. Bush Co.

• Decision Date: 03 October 1905
• Citation: 75 N.E. 230,182 N.Y. 393
• Parties: ALFSON v. BUSH CO., Limited.
• Court: New York Court of Appeals Court of Appeals

182 N.Y. 393

75 N.E. 230

ALFSON

v.BUSH CO., Limited.

Court of Appeals of New York.

Oct. 3, 1905.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Anon Alfson, as administrator of the estate of Anders Tobiasen, deceased, against the Bush Company, limited. From a judgment of the Appellate Division (89 N. Y. Supp. 1100,97 App. Div. 632), affirming a judgment for plaintiff, defendant appeals. Affirmed.

Ernest F. Eidlitz and Frederick Hulse, for appellant.

Carlisle J. Gleason, Abram I. Elkus, and Adolph Ruger, for respondent.

BARTLETT, J.

The plaintiff, as administrator of the deceased, brings this action under section 1902 of the Code of Civil Procedure to recover damages of the defendant corporation for negligently causing the death of the intestate. This section 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 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.’ On the 13th day of November, 1902, the intestate, a ship carpenter in the employ of the defendant corporation, was engaged in repairing a float, moored alongside one of its piers, and by reason of the alleged negligent acts of the defendant was instantly killed, being crushed between the float and the pier. The jury rendered a verdict in favor of the plaintiff for $2,000, and, the Appellate Division having unanimously affirmed the judgment entered thereon, the facts are conclusively settled in favor of plaintiff to the effect that the defendant was negligent and the intestate free from contributory negligence.

The counsel for the appellant calls our attention to several alleged legal errors founded on the refusal of the trial judge to charge certain requests as to the negligence of the intestate and as to his assumption of obvious risks. The answer to these questions depended upon the conclusion reached by the jury on conflicting evidence, and the trial judge, in a charge that was eminently fair to both parties, properly submitted the points in controversy to the triors of fact.

The appellant's counsel, however, raises an interesting question of law as to the proper construction to be given section 1902 of the Code of Civil Procedure, already quoted in full, and other sections to which reference will be presently made. It is a conceded fact that the intestate's widow and next of kin are nonresident aliens, domiciled in Norway, and the appellant insists that this action cannot be maintained for their benefit. This court, so far as we are advised, has never passed upon the question, although it has been considered in the lower courts. Tanas v. Municipal Gas Co., 88 App. Div. 251,84 N. Y. Supp. 1053, and cases cited. The courts of other states are at variance; Indiana, Pennsylvania, and , wisconsin holding the action cannot be maintained, while Massachusetts, Illinois, Alabama, and Arizona take the contrary view. It is to be observed that section 1902 of the Code of Civil Procedure is general in its terms, providing, in case of death by negligent act, the legal representative may maintain an action for the benefit of husband, wife, or next of kin. There are no words of limitation-no expression of the legislative will that the recovery authorized shall be distributed to residents only.

It is argued that this statute has no extraterritorial effect, and that public policy requires it should be construed as limited to beneficiaries residing within the jurisdiction. It is well to bear in mind at the outset of this inquiry the precise character of our statute, which differs in some respects from Lord Campbell's act (St. 9 & 10 Vict. c. 93), which is one of the earliest departures from the rule of the common law that purely personal wrongs died with the person who suffered them. This act has been copied to a greater or less extent in many of our sister states. The first section creates the cause of action, and the second section authorizes the executor or administrator of the deceased to bring the action, and the damages, ‘after deducting the cost not recovered from the defendant, shall be divided between the beforementioned parties (wife, husband, parent, and child of deceased), in such shares as the jury, by their verdict, shall find and direct.’ In Adam v. British, etc., Steamship Co., L. R. 2 Q. B. Div. 430 [1898], it was held that this act and its amendments (St. 27 & 28 Vict. c. 95) did not apply for the benefit of aliens abroad. The learned court said: ‘The intention of the Legislature is to be collected from the statute; and I see no implied, and certainly no express, intention to give to foreigners out of the jurisdiction a right of action which even British subjects had not until the passing of St. 9 & 10 Vict. c. 93. Moreover, the statute provides in section 2 for the division of the damages recovered amongst the various persons to be benefited in proportion to be assessed by the jury. It appears to me impossible to hold that it was intended, there being no expression to that effect, to cast upon juries such a duty as this in regard to the distant family of a deceased, and possibly polygamous, alien.’ The foregoing case was dissented from in Davidsson v. Hill, L. R. 2 K. B. 606 [1901].

Our Code of Civil Procedure contains a somewhat different legislative scheme. Section 1902, which creates the cause of action, has already been discussed. Section 1903 provides as follows: ‘The damages recovered in an action, brought as prescribed in the last section, are exclusively for the benefit of the decedent's husband or wife, and next of kin; and, when they are collected, they must be distributed by the plaintiff, as if they were unbequeathed assets, left in his hands, after payment of all debts, and expenses of...