Lichtenstern v. Augusta-Aiken Railway & Electric Corp.

The complaint alleges, in substance, that the defendant is a corporation organized under the laws of the state of Georgia and engaged in the operation of a railroad in the city of Augusta in that state; that in September, 1912, a strike existed between the defendant and its employes, and while the same was in progress one Irving A. Lichtenstern was employed by the defendant as a motorman on one of its cars; that he.accepted the employment upon the assurance and undertaking that he would be protected and saved harmless by the defendant from all loss, injury, damage, and liability; that he was assaulted by strikers while engaged in the furtherance of the business of the defendant, and his death resulted from the injuries received; that the assault occurred “without provocation or negligence on the part of the decedent, but solely by reason of the omission of the defendant to comply with the assurances herein-before described, and in consequence of its failure and omission to supply a sufficient number of guards and other persons to protect the decedent while he was engaged in the performance of the duties of his employment.” The complaint then sets out the Georgia statute relative to the recovery of damages for homicide, and alleges that the decedent was unmarried; that the plaintiff was his mother, and dependent in part upon him for support. Judgment was demanded in the sum of $50,000. The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. After the demurrer was interposed, plaintiff moved for judgment on the pleadings, which was granted, with leave to the defendant to withdraw its demurrer and answer upon payment of costs. From this order defendant appeals.

[1] A cause of action to recover damages for the death of a person does not exist at common law. It is wholly statutory (Debevoise v. Railroad Co., 98 N. Y. 377 , 50 Am. Rep. 683 ; Duncan v. St. Luke’s Hospital, 113 App. Div. 68 , 98 N. Y. Supp. 867 ), and depends upon the statute of the state where the death was caused (Debevoise v. Railroad Co., supra; Gurofsky v. Railroad Co., 121 App. Div. 126 , 105 N. Y. Supp. 514 ).

[2] It is fairly to be inferred from the allegations of the complaint under consideration that the death occurred in the state of Georgia; and whether plaintiff is entitled to recover, upon the facts set forth, depends upon the construction to be put upon the statute of that state, giving a right of action in case of death. The statute, or so much of it as is material to the subject under consideration, provides as follows :

“Sec. 3828. Recovery for Homicide, When.—* * * A mother, or, if no mother, a father, may recover for the homicide of a child minor or sui juris, upon whom she or he is dependent, or who contributes to his or her support, unless said child leave a wife, husband or child. * * *

“Sec. 3829. Definition of Terms in Preceding Section.—The word ‘Homicide,’ used in the preceding section, shall be held to include all cases where the death of a human being results from a crime or from criminal or other negligence. * * * ”

The mere breach by defendant of its contract obligation, assuming that such breach existed, cannot be made the basis of an action in tort for decedent’s death. Rich v. Railroad Co., 87 N. Y. 382 ; Stelz v. Van Dusen, 93 App. Div. 358 , 87 N. Y. Supp. 716 ; Lewis’ Adm’r.v. Coal Co., 112 Ky. 845 , 66 S. W. 1044 , 57 L. R. A. 447 . In the Lewis Case the facts were quite similar to those set out in this complaint. There a large number of employés of defendant, who were union men, were on a strike, and nonunion employés were frightened from continuing in defendant’s employ by threats of the strikers. Plaintiff’s intestate, a nonunion man, was threatened and communicated that fact to defendant’s superintendent, who then agreed, in consideration oí plaintiff’s intestate continuing at work, that the defendant would hire a sufficient guard to protect him from the strikers. The intestate, relying upon this agreement, continued at work. He was subsequently assaulted by the strikers, and so injured that he died shortly thereafter. It was held, even assuming there was a breach of contract, that it did not make defendant liable on the ground of negligence under the Kentucky statute, which is quite similar to the Georgia statute. See, also, Schick v. Fleischauer, 26 App. Div. 210 , 49 N. Y. Supp. 962 ; Tuttle v. Manufacturing Co., 145 Mass. 169 , 13 N. E. 465 ; Glenn v. Hill, 210 Mo. 291 , 109 S. W. 27 , 16 L. R. A. (N. S.) 699 .

It follows that the order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs, with leave to plaintiff to serve an amended complaint upon payment of costs in this court and in the court below. All concur.