Johnson v. Phoenix Bridge Co.

• Decision Date: 25 January 1910
• Parties: JOHNSON v. PHOENIX BRIDGE CO.
• Court: New York Court of Appeals Court of Appeals

197 N.Y. 316

90 N.E. 953

JOHNSON

v.PHOENIX BRIDGE CO.

Court of Appeals of New York.

Jan. 25, 1910.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Mary E. Johnson, as administratrix of John E. Johnson, deceased, against the Phoenix Bridge Company. From an order of the Appellate Division (118 N. Y. S. 88) reversing an order of the Erie Special Term, amending the summons and complaint, plaintiff, by permission (118 N. Y. S. 1116), appeals. Modified and affirmed.

The court, in granting leave to appeal to this court, certified that in its opinion the following questions of law are involved which ought to be reviewed by the Court of Appeals, viz.: (1) Whether the Supreme Court at Special Term, upon the papers submitted, had the power to amend the summons and complaint herein by adding as parties plaintiff Catharine Johnson, Mary A. Johnson, and Henry E. Johnson. (2) Whether the Supreme Court at Special Term, upon the papers submitted, had the power to grant the other amendments appearing in the amended summons and complaint.Edwin L. Dolson, for appellant.

Daniel J. Kenefick, for respondent.

CHASE, J.

John E. Johnson was one of the employés of the defendant on the cantilever bridge which was being erected over the St. Lawrence river at the time when it fell on August 29, 1907. He was one of many who lost their lives in that catastrophe. At the time of his death he was a resident of Buffalo in this state and left him surviving his widow and two children his only heirs at law and next of kin. He also left him surviving a father, his only ascendant relative. Some months thereafter his widow was appointed administratrix of his goods, chattels, and credits, and she brought this action as such administratrix, pursuant to section 1902, Code Civ. Proc., alleging that her husband's death was caused by the wrongful act, neglect, or default of the defendant. By section 1903 of said Code any damages recovered in the action so brought are exclusively for the benefit of the decedent's widow and next of kin, and must be distributed by the plaintiff as if they were unbequeathed assets left in her hands after payment of all debts and expenses of administration.

The Civil Code of Lower Canada provides: ‘Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.’ It further provides: ‘Masters and employers are responsible for the damage caused by their servants and workmen in the performance of the work in which they are employed.’ It further provides: ‘In all cases where the person injured by the commission of an offense or a quasi offense dies in consequence without having obtained indemnity or satisfaction, his consort and his ascendant and descendant relations have a right but only within a year after his death, to recover from the person who committed the offense or quasi offense, or his representatives, all damages occasioned by such death.’ If further provides: ‘In all cases no more than one action can be brought in behalf of those who are entitled to the indemnity and the judgment determines the proportion of such indemnity which each his to receive.’ Sections 1053, 1054, and 1056, Civil Code of Lower Canada.

The action authorized by the Canadian statute is maintainable in this state. Wooden v. W. N. Y. & P. R. R. Co., 126 N. Y. 10, 26 N. E. 1050, 13 L. R. A. 458, 22 Am. St. Rep. 803; Stone v. Groton Bridge & Mfg. Co., 77 Hun. 99,28 N. Y. Supp. 446. It is dependent upon the provisions of the statute of that province in which the accident occurred, and that statute governs and controls the action except in mere matters of procedure and detail. Kiefer v. Grand Trunk R. Co., 12 App. Div. 28,42 N. Y. Supp. 171, affirmed on opinion below, 153 N. Y. 688, 48 N. E. 1105. The cause of action does not exist under the Canadian statute in favor of the administrator or executor, but it is expressly given to the consort and the ascendant and descendant relatives of the deceased. It is also made dependent upon the action being commenced within a year after the decedent's death. The commencement of the action as therein provided is a condition precedent to its successful maintenance. Stuber v. McEntee, 142 N. Y. 200-203, 36 N. E. 878;Colell v. D., L. & W. R. R. Co., 80 App. Div. 342,80 N. Y. Supp. 675;Hill v. Board of Supervisors, 119 N. Y. 344, 23 N. E. 921. The action, unfortunately for the persons entitled to the indemnity, was brought in the name of the administratrix of the goods, chattels, and credits of the deceased.

The original complaint in the action included allegations sufficient, if the accident had occurred in this state, to have constituted a cause of action under the statutes of this state, and it also included allegations sufficient to constitute a cause of action in favor of the consort and ascendant and descendant relations of the decedent, under the Civil Code of Lower Canada, except that it did not include an allegation showing what, if any, ascendant relatives the deceased left him surviving. Some of the allegations of the complaint were unnecessary in an action by the persons entitled to the indemnity under said Civil Code.

After more than one year had expired from the death of the decedent, counsel for the plaintiff asked the court to amend the summons and complaint by striking from the title of the action the words ‘as administratrix of the goods, chattels, and credits of John E. Johnson, deceased,’ and by inserting therein and in each of them in place of the words stricken out the words ‘Individually and as guardian ad litem of Catharine Johnson and Mary A. Johnson, infants, and Henry E. Johnson,’ and for leave to serve an amended complaint with allegations to conform to the amendments to said summons and complaint.

In the affidavit served with the notice of motion for such amendments counsel for the plaintiff stated: ‘That by inadvertence and being misled by the statute in this connection existing in the state of New York, and also by the statute in this connection existing within the province of Ontario, said action was entitled ‘Mary E. Johnson, as Administratrix of the Goods, Chattels, and Credits of John E. Johnson, Deceased, Plaintiff, against Phoenix Bridge Company, Defendant, whereas, * * * the title to said action should have included as plaintiffs his widow in her individual capacity and the ascendant and descendant...