Schmidt v. Merchants Despatch Transp. Co.

CourtNew York Court of Appeals
Writing for the CourtLEHMAN
Citation270 N.Y. 287,200 N.E. 824
PartiesSCHMIDT v. MERCHANTS DESPATCH TRANSP. CO. FELLI v. UNITED STATES GYPSUM CO. LABIEKO v. AMERICAN PIANO CO. et al.
Decision Date03 March 1936

270 N.Y. 287
200 N.E. 824

SCHMIDT
v.
MERCHANTS DESPATCH TRANSP.
CO.
FELLI
v.
UNITED STATES GYPSUM CO.
LABIEKO
v.
AMERICAN PIANO CO. et al.

Court of Appeals of New York.

March 3, 1936.


Actions by Frederick W. Schmidt against the Merchants Despatch Transportation Company, by Giulio Felli against the United States Gypsum Company, and by Anthony Labieko against the American Piano Company and others. From judgments of the Appellate Division (244 App.Div. 606, 280 N.Y.S. 836, and 244 App.Div. 606,280 N.Y.S. 855), affirming judgments of the Special Term dismissing the complaint, plaintiffs appeal.

Modified, and affirmed as modified.

[200 N.E. 825]


[270 N.Y. 288]Appeal from Supreme Court, Appellate Division, Fourth Department.

Philip Halpern, of Buffalo, William L. Clay, of Rochester, and Milton H. Friedman and Emil L. Cohen, both of Buffalo, for appellants.

270 N.Y. 290]Paul Folger and Harlan F. Calkins, both of Rochester, for respondent Merchants Despatch Transportation Co.
[270 N.Y. 292]T. Carl Nixon and Casper Baltensperger, both of Rochester, for respondent United States Gypsum Co.

[270 N.Y. 293]Percival D. Oviatt, of Rochester, for respondents American Piano Co. and others.

[270 N.Y. 295]John D. Sullivan and William De Graff, both of Rochester, for American Laundry Machinery Co. et al., amici curiae.

[270 N.Y. 296]Lathrop D. Marsland, of Rochester, for Flower City Charcoal Co., amicus curiae.

[270 N.Y. 297]Eugene Raines, of Rochester, for Cutler Mail Chute Co., amicus curiae.

LEHMAN, Judge.

The plaintiff in his complaint alleges that, while in the employ of the defendant, he inhaled foreign substances in the form of dust, and, as a result, contracted a disease of the lungs known as pneumoconiosis. In various forms and in separate and distinct causes of action the complaint alleges that the plaintiff's exposure to such a risk constituted the breach of a duty which the defendant, as employer, owed to the plaintiff as employee. The wrongful act of the defendant, however, alleged in these separate causes of action, remains the same. The alleged injury to the plaintiff is a single injury. The failure of the defendant to give adequate protection to the plaintiff, against a danger which arises in the course of the plaintiff's employment, and the injury arising therefrom constitute the basis of each ‘cause of action.’ That duty, as alleged in one ‘cause of action,’ arises from the general rule that every person must exercise reasonable care to avoid causing injury to the person or property of another. That duty, as alleged in other causes of action, arises from contract or from express representation by the defendant that the work which the plaintiff was employed to do was safe; or finally that duty is imposed by statute. None the less, the act of the defendant in exposing the plaintiff to the effect of the inhalation of a dust causing

[200 N.E. 826

an incurable lung disease, remains a single wrong and the personal injuries which, it is alleged, the plaintiff has suffered arise from that single wrong.

‘An action to recover damages for a personal injury resulting from negligence’ must be commenced within three years after the cause of action has accrued. Civil [270 N.Y. 298]Practice Act, § 49. The defendant maintains that the breach of duty owed to the plaintiff by the defendant as employer constitutes negligence and that the plaintiff has only a single cause of action for damages for a personal injury resulting from such negligence. It is not disputed that the plaintiff's employment ceased more than three years before this action was commenced. Any breach of duty owed by the defendant as employer must, then, have been completed before that time. For that reason, the complaint has been dismissed upon the defendant's motion.

Since the defendant has committed but a single wrong and the plaintiff has suffered but a single injury, the plaintiff has in one sense only a single cause of action. Payne v. New York, S. & W. R. R. Co., 201 N.Y. 436, 95 N.E. 19;Luce v. New York, C. & St. L. R. R. Co., 213 App.Div. 374, 211 N.Y.S. 184; affirmed 242 N.Y. 519, 152 N.E. 409. However, ‘a ‘cause of action’ may mean one thing for one purpose and something different for another.' United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67, 68, 53 S.Ct. 278, 280, 77 L.Ed. 619. Judicial decision cannot be based soundly upon dialectical distinctions or rigid application of purely formal concepts. An allegation that a single act or default constitutes a breach of a duty imposed upon common-law principles and, at the same time, the breach of a duty imposed by statute, may be immune from attack, on the ground that it embodies two causes of action which should be separately stated and numbered. So, too, a successful defense of an action brought to recover upon one ground of liability for an alleged wrongful act or default may constitute a conclusive adjudication against a plaintiff who seeks to assert another cause of action based upon a different ground of liability but for the same alleged wrong. In such cases a division of a single injury caused by a single wrong into separate causes of action would ignore the essential fact that, in truth, there has been but a single wrong and a single injury. The problem is different [270 N.Y. 299]when the defendant claims that the statute of limitations bars recovery for the single injury.

We assume that the allegations in the complaint of five ‘separate and distinct’ causes of action, set forth, in different forms, only a single wrong for which there may be but one recovery. That must be true, for evidently there can be but one satisfaction awarded for a single injury. None the less the Legislature may, if it chooses, impose one period of limitation for a cause of action to recover damages for a personal injury arising from negligence and different periods of limitation for a cause of action for the same injury where liability may arise on other grounds; and, in determining which period of limitation applies to a particular cause of action, the criterion is the origin and nature of the liability asserted. The single wrongful act which is asserted as the basis of recovery may constitute the breach of a number of obligations of diverse nature and origin. Then it may rest with the plaintiff whether he will assert as the basis of his right to damages the breach of one or more of such obligations; and the single right to recover such damages may then be alleged in different forms, each asserting as a basis of liability the breach of some duty or obligation. Each so-called ‘separate and distinct cause of action’ becomes in effect a ‘count’ in the allegation of a single wrong; and whether the statute bars recovery under any count depends upon the nature and origin of the liability asserted in that count. In that sense a single wrong may give rise to different causes of action.

The wrong alleged in the first cause of action is unquestionably the negligence of the defendant. Failure to comply with statutory safeguards, commanded by the state for the purpose of protecting employees from injury through inhalation of dust, is alleged only as a specification of defendant's negligence. That cause of action is barred three years from the date it accrued. As to that cause of action,

[200 N.E. 827]

the only question presented upon this appeal is when it accrued.

[270 N.Y. 300]We have said that ‘in actions of negligence damage is of the very gist and essence of the plaintiff's cause.’ Comstock v. Wilson, 257 N.Y. 231, 235, 177 N.E. 431, 432, 76 A.L.R. 676. Accordingly, the plaintiff claims that his cause of action accrued, not at the time he inhaled the dust-more than three years before the action was commenced-but at the time when the dust so inhaled, resulted in a disease of the lungs, and that date, it is said, can be determined only by medical testimony.

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326 practice notes
  • Spock v. United States, No. 76 Civ. 4457 (VLB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 18, 1978
    ...v. Beneficial Finance Co. of New York, 39 A.D.2d 11, 330 N.Y.S.2d 664 (4th Dept. 1972). See also Schmidt v. Merchants Despatch Trans. Co., 270 N.Y. 287, 304-06, 200 N.E. 824 Although plaintiff has cited no New York cases which predicate a cause of action upon the wiretapping and eavesdroppi......
  • In re World Trade Center Disaster Site Litigation, No. 21 MC 100 (AKH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 20, 2003
    ...9. Under New York law, damages begin to accrue for respiratory injuries upon exposure, see Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 200 N.E. 824, 827 (1936), although the time to file suit may be enlarged by N.Y. C.P.L.R. 214-c to begin running on the date of discovery of th......
  • Daily v. New Britain Mach. Co.
    • United States
    • Supreme Court of Connecticut
    • July 22, 1986
    ...v. Johns-Manville Sales Corporation, 135 Conn. 176, 179-80, 62 A.2d 771 (1948), quoting Schmidt v. Merchants Despatch Transportation Co., 270 N.Y. 287, 302, 200 N.E. 824 (1936). For example, some of the evidentiary problems that may arise in connection with trying cases involving older prod......
  • Biglioli v. Durotest Corp., No. A--502
    • United States
    • New Jersey Superior Court – Appellate Division
    • October 1, 1956
    ...dust disease cases, at the time of the first inhalation of the dust. See, for a leading case, Schmidt v. Merchants Dispatch Transp. Co., 270 N.Y. 287, 200 N.E. 824, 827, 104 A.L.R. 450 (Ct.App.1936). That theory was demolished by Mr. Justice (then Judge) Oliphant in Hughes v. Eureka Flint, ......
  • Request a trial to view additional results
326 cases
  • Spock v. United States, No. 76 Civ. 4457 (VLB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 18, 1978
    ...v. Beneficial Finance Co. of New York, 39 A.D.2d 11, 330 N.Y.S.2d 664 (4th Dept. 1972). See also Schmidt v. Merchants Despatch Trans. Co., 270 N.Y. 287, 304-06, 200 N.E. 824 Although plaintiff has cited no New York cases which predicate a cause of action upon the wiretapping and eavesdroppi......
  • In re World Trade Center Disaster Site Litigation, No. 21 MC 100 (AKH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 20, 2003
    ...9. Under New York law, damages begin to accrue for respiratory injuries upon exposure, see Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 200 N.E. 824, 827 (1936), although the time to file suit may be enlarged by N.Y. C.P.L.R. 214-c to begin running on the date of discovery of th......
  • Daily v. New Britain Mach. Co.
    • United States
    • Supreme Court of Connecticut
    • July 22, 1986
    ...v. Johns-Manville Sales Corporation, 135 Conn. 176, 179-80, 62 A.2d 771 (1948), quoting Schmidt v. Merchants Despatch Transportation Co., 270 N.Y. 287, 302, 200 N.E. 824 (1936). For example, some of the evidentiary problems that may arise in connection with trying cases involving older prod......
  • Biglioli v. Durotest Corp., No. A--502
    • United States
    • New Jersey Superior Court – Appellate Division
    • October 1, 1956
    ...dust disease cases, at the time of the first inhalation of the dust. See, for a leading case, Schmidt v. Merchants Dispatch Transp. Co., 270 N.Y. 287, 200 N.E. 824, 827, 104 A.L.R. 450 (Ct.App.1936). That theory was demolished by Mr. Justice (then Judge) Oliphant in Hughes v. Eureka Flint, ......
  • Request a trial to view additional results

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