Dodge v. Town of North Hudson

• Decision Date: 26 April 1910
• Citation: 177 F. 986
• Parties: DODGE v. TOWN OF NORTH HUDSON.
• Court: U.S. District Court — Northern District of New York

177 F. 986

DODGE v. TOWN OF NORTH HUDSON.

United States Circuit Court, N.D. New York.

April 26, 1910

Miller & Matterson, for plaintiff.

F. G Fincke, for defendant.

RAY District Judge.

Evidently this is intended to be an action by the administratrix of James E. Dodge, deceased, to recover damages for the death of said Dodge caused by the actionable negligence or wrongful act or omission of the defendant, one of the municipal corporations (towns) of the state of New York, growing out of defects in its highway and bridge on which said Dodge was traveling, and can be maintained, if at all, under the provisions of the Code of Civil Procedure of the state of New York and its highway laws only. The amount of damages alleged and claimed is sufficient to give this court jurisdiction, so far as amount involved is concerned, but the complaint fails to allege that the plaintiff, at the time the action was commenced was a citizen of the state of Massachusetts, or of some state other than New York, unless the allegation that she is the administratrix, etc., of James E. Dodge, deceased, appointed by the courts of Massachusetts, is an allegation that she is a citizen of said state. Hence, it is claimed the complaint fails to show the requisite diversity of citizenship.

The further objection is raised that there is no allegation that plaintiff has been appointed administratrix of the estate of said Dodge in the state of New York, or that she has taken ancillary letters here, and that an action cannot be maintained in the Circuit Court of the United States for the Northern District of New York to recover damages resulting from death caused by the wrongful act or negligence of a town, or person, or corporation under the statutes referred to by an executor or administrator of the estate of a deceased person who was domiciled in another state, appointed by the probate or surrogate's court of such foreign state, the domicile of the deceased person at the time of the injury and death, the injury or negligence occurring in the state of New York. James E. Dodge, at the time of the injury resulting in his death, was a citizen and resident of the county of Middlesex, state of Massachusetts, and was traveling on the public highway in the town of North Hudson county of Essex, N.Y., when he was injured so that he died at his home in Massachusetts of such injuries by reason of the actionable negligence of said town or of its officers. Thereafter, and on the 1st day of August, 1909, Josephine M Dodge, residing in Massachusetts, widow of said James E. Dodge, was duly appointed sole administratrix of the estate of said decedent by the probate court of said county of Middlesex, state of Massachusetts, said court having jurisdiction, and she duly qualified as such, and thereafter brought this action. Notice of the time, place, etc., of the accident and of this claim was duly given as required by the New York statutes. It is the case of an administratrix of the estate of a resident and citizen of the state of Massachusetts appointed by the probate court of that state, suing in the state of New York, in the Circuit Court of the United States and in the district where defendant resides, to recover damages on a cause of action arising in the state of New York and given by the statutes of such state, without taking ancillary letters in such state.

This action is against one of the towns of one of the counties of the state of New York, organized and declared to be a municipal corporation. Section 74 of the highway law of the state of New York, in effect July 26, 1908, when this transaction complained of occurred, declares:

'That every town shall be liable for all damages to person or property sustained by reason of any defect in its highways or bridges existing because of the neglect of any commissioner of highways of such town. ' Laws 1908, c. 330.

This liability of the town for negligence in relation to highways and bridges does not exist at common law, but is given by statute, and by the statute mentioned. People ex rel. Van Kenren v. Board of Town of Auditors of Town of Esopus, 74 N.Y. 310, 315, 316; Thompson on Highways, 75, 76, 260, 261, and cases cited. The statute formerly imposed the duty to repair and keep in reasonably safe condition highways and bridges on highway commissioners, and they were held liable in case they had funds only.

Subsequently the duty was imposed on the town direct by the statute referred to. However, the action to recover damages for the negligence of the town or its commissioner is in tort, and is not local, but transitory, and can be maintained wherever the wrongdoer can be found. Dennick v. Railroad Company, 103 U.S. 11, 26 L.Ed. 439, cited and approved; Stewart v. Baltimore & Ohio Railroad Co., 168 U.S. 445, 448, 18 Sup.Ct. 105, 42 L.Ed. 537. The negligence consists in failing to perform a duty imposed by statute, and the liability is now imposed on the town itself.

The cause of action now referred to (two are set out in the complaint; one to recover damages for the death, and the second to recover damages for the destruction of the vehicle in which Dodge was riding when he received his injuries), being for damages for a tort causing or resulting in death, no recovery could be had by the executor or administrator of the deceased under any common-law rule or remedy, but the action can be maintained under the provisions of the Code of Civil Procedure of the state of New York, sections 1902, 1903, of which provide as follows:

'1902. Action for Death by Negligence-- 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.

'1903. For Whose Benefit Recovery Had.-- 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 administration. But the plaintiff may deduct therefrom the expenses of the action, and his commissions upon the residue; which must be allowed by the surrogate, upon notice, given in such a manner and to such persons, as the surrogate deems proper.'

This statute removes the common-law obstacle to a recovery of damages resulting from the death of the person injured in cases where such person might have recovered had he lived. Stewart v. Baltimore & Ohio Railroad Co., 168 U.S. 445, 449, 18 Sup.Ct. 105, 106, 42 L.Ed. 537. It was there said:

'As heretofore noticed, the substantial purpose of these various statutes is to do away with the obstacle to a recovery caused by the death of the party injured,' and 'a negligent act causing death is in itself a tort, and, were it not for the rule founded on the maxim 'actio personalis moritur cum persona,' damages therefor could have been recovered in an action at common law.'

And, referring to the statutes of the various states similar to New York Code of Civil Procedure, quoted, the court said:

'The purpose of the several statutes passed in the states, in more or less conformity to what is known as 'Lord Campbell's Act,' is to provide the means for recovering the damages caused by that which is essentially and in its nature a tort. Such statutes are not penal, but remedial, for the benefit of the persons injured by the death.' In the same case it is held:

'For purposes of jurisdiction in the federal courts, regard is had to the real, rather than to the nominal, party'-- citing cases.

In the case referred to and from which these quotations are made the plaintiff's intestate was killed by the negligence of the defendant in the state of Maryland. The action was brought by the personal representative of the deceased in the District of Columbia on the Maryland statute which provides that:

'Every such action * * * shall be brought by and in the name of the state of Maryland'-- while a similar statute in the District of Columbia provides that:

'The action shall be brought in the name of the personal representative of the deceased.'

As was said in Pollard v. Bailey, 20 Wall. 520, 22 L.Ed. 376:

'A general liability created by statute without a remedy may be enforced by an appropriate common-law action. But where the provision for the liability is coupled with a provision for a special remedy, that remedy, and that alone, must be employed.'

Notwithstanding this rule, cited by the court, the Supreme Court held that the personal representative of the deceased could maintain the action given by the Maryland statute and removing the obstacle to the maintenance of such an action for damages for the death, and said:

'The two statutes differ as to the party in whose name the suit is to be brought. In Maryland, the plaintiff is the state; in the district, the personal representative of the deceased. But neither the state in the one case, nor the personal representative in the other, has any pecuniary interest in the recovery. Each is simply a nominal plaintiff. While in the district the nominal plaintiff is the personal representative of the deceased, the damages recovered do not become part of the assets of the estate, or liable for the debts of the deceased, but are distributed among certain of his heirs. By neither statute is there any thought of

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