Appeal from Trial Term, New York County.
Action by Pasqualina Bertolami, administratrix of George Bertolami, deceased, against the United Engineering & Contracting Company.From a judgment for plaintiff, and from an error denying a new trial, defendant appeals. Reversed.
See, also, 125 A.D. 584, 109 N.Y.Supp. 1006.
Scott and Ingraham, JJ., dissenting.
If the notice of an injury under the employer's liability act (Laws 1902, p. 1748, c. 600) is insufficient, it cannot sustain a sufficient complaint.
[117 N.Y.S. 827] Theron G. Strong, for appellant.
Thomas J. O'Neill, of counsel (John J. Welsh, on the brief), for respondent.
Argued before INGRAHAM, McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.
This is the third time this case has been before this court on appeal by the defendant from a judgment entered upon a verdict for the plaintiff. This is an action to recover damages for the death of plaintiff's intestate, alleged to have been caused by the negligence of the defendant, and for a cause of action given by the Employer's Liability Act, c. 600, p. 1748, of the Laws of 1902. No action at the common law would lie upon the facts here presented. Upon the first appeal in 120 A.D. 192, 105 N.Y.Supp. 90, the judgment was reversed for errors in the charge. Upon the second appeal ( 125 A.D. 584, 109 N.Y.Supp. 1006), this court said that the complaint specified the negligent acts as follows:
" (1) That said defendant failed to furnish him with a safe place to work, and (2) failed to reasonably safeguard, inspect, and keep safe the place, appliances, and apparatus used in connection with said contracting operations, and (3) failed to furnish deceased and said contracting operations with reasonably safe appliances, apparatus, cable, ropes, wires, buckets, ways, works, and machinery with which to do said work, and (4) knowingly employed and retained incompetent foremen and workmen to guide, direct, and assist plaintiff's intestate in the performance of his work, and (5) failed to formulate, promulgate, and enforce proper rules and regulations for the safety of deceased and said co-employes. The plaintiff here sets forth five separate and distinct specifications of negligence, not one of which was proven, as the trial justice very properly held and charged. If there was any negligence, and not a mere error of judgment, it was that of defendant's foreman in the manner in which he directed the prosecution of a detail of the work, and of such negligence there is no allegation in the complaint; and no one of the specifications of negligence quoted above can be fairly construed so as to cover the facts disclosed by the proofs" -and the judgment was reversed.
Thereafter the plaintiff amended her complaint so as to allege as follows:
" And defendant was guilty of negligence in that it removed the iron post supporting the roof of the tunnel without first causing the said roof which was in a dangerous condition, to be supported, and the work of supporting the roof of said tunnel and the removed of said post was conducted by unsafe and dangerous methods, and that the defendant's employes then charged with and acting as superintendents negligently and carelessly conducted themselves in connection with said acts of superintendence, in that among other things they directed the removal of said post supporting the roof of the tunnel, without providing for the maintenance and support of the dangerous roof of said tunnel, and negligently directed the removal of the said supports at a time when the roof of said tunnel was insufficiently and improperly supported, as a result of all of which large quantities of rock and earth were caused and permitted to fall upon, injure, and kill plaintiff's intestate, as aforesaid."
The third trial came on under said amended complaint, and plaintiff offered the following notice as the notice given under the employer's liability act:
[117 N.Y.S. 828] " Please take notice that on August 7, 1906, George Bertolami, deceased, then in your employ, received injuries to his body which resulted in his death, and that said injuries and death were received while working in connection with the contracting operation of the Pennsylvania Terminal excavation on East Thirty-Third street, New York City, Manhattan. That the injuries which caused the death of the said George Bertolami were caused without any negligence on his part in any wise contributing thereto, but solely by your negligence, as his master, in that you failed to furnish him with a reasonably safe place to work, and failed to reasonably safeguard, inspect, and keep safe the place, appliances, and apparatus used in connection with said contracting operation, and failed to furnish deceased and said contracting operation with reasonably safe appliances, apparatus, cables, ropes, wires, buckets, ways, works, and machinery with which to do said work, and knowingly employed and retained incompetent foremen and co-workmen to guide, direct, and assist him in the performance of his work, and failed to formulate, promulgate, and enforce proper rules and regulations for the safety of deceased and his said co-employes, as a result of all of which large quantities of rock and earth and a bucket were caused to fall upon the body of the said George Bertolami and injure him and kill him as aforesaid."
Defendant objected to the sufficiency of said notice on the ground that it failed to state as a cause of injury the negligence of a superintendent or a person acting as such, which objection being overruled, and the notice being admitted in evidence, the defendant excepted.
At the close of the plaintiff's case, the defendant moved to dismiss the complaint upon the following grounds, among others:
" The notice served under the employer's liability act does not state as cause of injury negligence of a superintendent or of a person acting as such with the authority and consent of the employer, and is insufficient as a foundation for this action, as the cause of injury, above stated, is the cause of injury relied on."
This motion upon this ground was renewed at the close of the whole case, and an exception taken to its denial, and the defendant requested the court to charge:
" The notice served by plaintiff is insufficient, as it fails to state as the cause of injury the cause of injury now relied on"
-which request the court refused, and an exception was duly taken. These motions and exceptions completely raise the question of the sufficiency of the notice which is the foundation of this cause of action, and present the only question to be considered upon this appeal, because, assuming that the notice was sufficient, the evidence fairly presented a question of fact as to the negligence of the foreman, Carniel, and as to whether or not the acts done by him and claimed to be negligently done were acts of superintendence performed by one acting as superintendent. These two questions of fact were carefully and properly submitted to the jury. The court also charged specifically that the plaintiff had failed to establish any other acts of negligence specified in the notice and any of those alleged in the complaint, other than the negligence of the superintendent. Being fair questions of fact, and having been resolved by the jury in favor of the plaintiff, we would not disturb this verdict as against the weight of evidence. Nor could we set it aside or reduce it as excessive, because the order denying the motion for a new trial, which is appealed from, does not show that a motion was made and denied to set aside the verdict as excessive.
[117 N.Y.S. 829] It is to be noted that the first complaint, held by this court upon the last appeal ( 125 A.D. 584, 109 N.Y.Supp. 1006) to be insufficient, followed the language of the notice, and did not set up any cause of action based upon the negligence of a superintendent, which is a cause of action given by the employer's liability act. The amended complaint distinctly sets forth that cause of action, and it is upon that cause of action that the plaintiff has recovered. While the complaint could be and has been amended, of course it was impossible to alter the notice, so that the question is squarely up, Is the notice sufficient? for if not, it of course cannot sustain a sufficient complaint.
In Harris v. Baltimore Machine & El. Works, 188 N.Y. 141, 80 N.E. 1028, Gray, J., said:
" The employer's liability act extended the liability of the employer of labor at common law, and, in order to sufficiently plead a cause of action thereunder, required as a condition precedent that notice be given of the accident to the master. It gave an additional cause of action, because it prescribed that a master should be liable for the negligence of the superintendent or the person acting as such. Gmaehle v. Rosenberg, 178 N.Y. 147, 70 N.E. 411.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" -cited in Guilmartin v. Solvay Process Co., 189 N.Y. 490, 82 N.E. 725; Gallagher v. Newman, 190 N.Y. 444, 83 N.E. 480,16 L.R.A. (N. S.) 146.
The statute imposing liabilities upon the master not known to the common law, the courts have had this to say upon the rule of construction to be applied. In Barry v. Derby Desk Co., 121 A.D. 810, 106 N.Y.Supp. 575, Mr. Justice Lambert said:
" In no case where the rights of the individual are enlarged beyond the common-law right has it ever been held that the statute is open to liberal construction ...