Appeal from the District Court of the United States for the Western District of New York.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
Appellant, employed in New York state by appellee as a miner for twenty years, left its employment in July, 1929. He commenced this suit for damages to his person, due to contracting silicosis, on February 19, 1934. Asserting by affidavit that the suit was barred by the statute of limitations, the appellee moved for its dismissal, which was granted.
The complaint pleads a cause of action based on the negligent failure of the appellee to provide proper safeguards and appliances to protect appellant from dust generated at the place of employment, appellant contracting pneumoconiosis, pulmonary fibrosis, and other diseases. Application for leave to file an amended complaint was refused. The amended complaint, in addition to the allegations of negligence and nuisance, as in the original complaint, added other causes of action, separately stated. Filing was refused because the pleaded causes of action were held barred by the limitations statutes of New York.
The motion to dismiss the complaint complied with the New York practice. Rules 107, 108, Rules of Civil Practice; Koppel Industrial C. & E. Co. v. Portalis & Co., Ltd., 205 App. Div. 144, 199 N.Y.S. 153.
Section 49 of the Civil Practice Act provides that a suit must be commenced within three years when based upon "An action to recover damages for a personal injury resulting from negligence." The appellant's actionable injury, if any, resulted from his employment and occurred some time before he terminated that service. The duties owed to appellant lasted during employment and ended with its cessation.
The negligence claimed in the first cause of action occurred during his service. The statute began to run when he left, and he had three years thereafter to sue. After this lapse, the action was barred. Conklin v. Draper, 229 App. Div. 227, 241 N.Y.S. 529, affirmed 254 N.Y. 620, 173 N.E. 892; Wiersycki v. Pratt & Letchworth Co., 151 Misc. 207, 271 N.Y.S. 36. In compensation acts, some states have defined the time of accrual of causes of action. Dusek v. Penn. R.R. Co. (C.C.A.) 68 F.2d 131; Johnson v. London Guarantee & Accident Co., 217 Mass. 388, 104 N.E. 735; Madison v. Wedron Silica Co., 352 Ill. 60, 184 N.E. 901; Selders v. Cornhusker Oil Co., 111 Neb. 300, 196 N.W. 316. But under no rule of common law has it been held that the opinion of an expert as to when silicosis actually appeared starts the statute running. The cause of injury and the wrong may be committed, perhaps, at different times, but must occur within the time of employment.
The second cause of action is based on nuisance. But the damage, which the appellant claims was due to exposure, existing solely at the place of employment and which arose as an incident of his employment, is limited to such time. Such a right of action, if it exists, is based on negligence and not nuisance. Hayes v. Brooklyn Heights R.R. Co., 200 N.Y. 183, 93 N.E. 469; Hughes v. City of Auburn, 161 N.Y. 96, 55 N.E. 389, 46 L.R.A. 636; Kavanagh v. Barber, 131 N.Y. 211, 30 N.E. 235, 15 L.R.A. 689; Swords v. Edgar, 59 N.Y. 28, 17 Am. Rep. 295.
The third cause of action is based on a breach of contract. The failure to supply appellant with a safe place to work results not in a breach of contract, but a wrongful act of negligence for which recovery may be had. Hermes v. Westchester Racing Ass'n, 213 App. Div. 147, 210 N.Y.S. 114; Maxson v. D., L. & W.R.R. Co., 112 N.Y. 559, 20 N.E. 544; Webber v. Herkimer & M. St. R.R. Co., 109 N.Y. 311, 16 N.E. 358; Carroll v. Staten I.R.R. Co., 58 N.Y. 126, 134, 17 Am. Rep. 221.
The fourth cause of action sounds in fraud or misrepresentation, but its offense, if any, is due to negligence. Payne v. N.Y. Susquehanna & W.R.R. Co., 201 N.Y. 436, 95 N.E. 19; Daurizio v. Merchants' Despatch Transp. Corp., 152 Misc. 716, 274 N.Y.S. 174.
The appellant in his fifth cause of action, says he rests on a statutory obligation, as distinguished from negligence, and that the New York statute allows six years in which to sue. Civil Practice Act, § 48.
Section 299, subd. 3, of the Labor Law of the State of New York (Consol. Laws, c. 31), provides:
"If dust, gases, fumes, vapors, fibres or other impurities are generated or released in the course of the business carried on in any workroom of a factory, in quantities tending to injure the health of the employees, suction devices shall be provided which shall remove such impurities from the workroom, at their point of origin where practicable, by means of proper hoods connected to conduits and exhaust ...