Bertolami v. United Engineering & Contracting Co.

Clarke, J.: 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 Employers’ Liability Act (Laws of 1902, chap. 600). No action at the common law would lie upon the facts here presented. Upon the first appeal in 120 Appellate Division, 192, the judgment was reversed for errors in the charge. Upon the second appeal (125 App. Div. 584) this court said that the complaint specified the negligen t 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 coemployees. 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 — 806 — 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 removal of said post was conducted by unsafe and dangerous methods, and that the. defendant’s employees 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 Employers’ Liability Act: “ Please take notice that on August 7th, 19Ó6, 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'33rd 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-employees, as a result of all of which large quantities of rook and earth and a bucket were caused to fall upon the body of the said George Bertolami and injure and kill him, as aforesaid/’ Defendant objected to the ettf — 807 — ficiency 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 Employers’ 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 a 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. It is to be noted that the first complaint held by this court upon the last appeal (125 App. Div. 584) 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 — 808 — given by the Employers’ 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 & Elevator Works (168 2SL Y;. 141) Gray, J., said : “ The Employers’ 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 to a recovery that notice be given of the accident to the master. It gave an- additional cause of action, because it prescribed •that a master shall be liable for the negligence of the superintendent, or the person acting as. such. ■ (Gmaehle v. Rosenberg, 178 H. Y, 147.) 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 2L Y. 490, and Gallagher v. Newmanj 190 id. 444.). The statute .imposing liabilities upon the master not kiiown 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 App. Div. 810) Mr. Justice Lambert said : “ In no case, where the rights of the individual are enlarged beyond tlie common-law right, ■ has it ever been held that the statute is open to liberal construction or substantial compliance, so far as we have been able to discover.” Mr. Justice Scott, concurring, said : “ It is true that the act, so far as concerns the employee, is remedial in its nature, but as regards the employer, it enlarges his liability, and while it should not be so • construed as to hamper the employee in the pursuit of his added remedy, the employer is entitled to such a notice of the alleged cause of the injury as. will enable him to intelligently investigate the circumstances.” • . In Williams v. Citizens Steamboat Co. (122 App. Div. 188) Mr. Presiding Justice Smith said: “The liability created by the Employers’ Liability Act has been held by this court to be in derogation of common law, and the act is subject, therefore, to strict construction. (O'Neil v. Karr, 110 App. Div. 571.) ” In Droge v. Robins Co. (123 App. Div. 537) Mr. Justice Woop — 809 — ward said : “ Wliatever of uncertainty originally surrounded the question of the scope of the Employers’ Liability Act, it is now established that in order to hold the employer liable, it must be shown not only that the negligence was that of one exercising superintendence, but that he was engaged in an act of superintendence at the time.” In Bovi v. Hess (123 App. Div. 389) Mr. Justice Lambert said of this act: “ It is to enlarge the common-law obligations of those who become employers, and under well-established rules a change in the common law taking away rights is to be strictly construed. It may be said that it gives rights to the employee and is, therefore, to be liberally construed to effect that result, but where it is necessary to take from one man to give to another, it would seem that the common, law, the growth of ages of careful development of the rights of man, should not be changed farther than is required to meet the letter of the statute.” The notice served has been held insufficient where it contained merely general allegations of negligence in Miller v. Solvay Process Co. (109 App. Div. 135); Ortolano v. Degnon Contracting Co. (120 id. 59); Barry v. Derby Desk Co. (121 id. 810); Finnigan v. New York Contracting Co. (122 id. 714); Bovi v. Hess (123 id. 389); Glynn v. N. Y. C. & H. R. R. R. Co. (125 id. 186); Kennedy v. New York Telephone Co. (Id. 846), and Palmieri v. Pearson & Son, Inc. (128 id. 231); and the question, so far as general allegations of negligence are concerned, may now be regarded settled by the case of Finnigan v. New York Contracting Co. (194 N. Y. 244), where Hiscock, J., said: “We have no idea that the Legislature intended to require a notice of such technical form, and perfection that it would satisfy the tests to be applied to a pleading, and demand a skill in preparation which would be entirely beyond the capacity of a. layman. Such construction would tend to defeat the purposes of the statute and it should not be adopted. On the other hand, we have no doubt that the Legislature intended that the notice in stating the cause of the injury should with reasonable definiteness and - completeness, in however informal and inartistic manner, indicate the negligent or wrongful misconduct of the employer really claimed to have been the cause of the accident and really relied on as the basis of the complaint against him, and this manifestly that he might by virtue of said seasonable notice — 810 — investigate and prepare to defend against the charge. thereafter actually to be prosecuted. • “ It seems obvious that the notice which has been served as a foundation for this action does not comply with these principles in its statement of the cause of the injury. In the first place it states many independent grounds of negligence, all of which could not within any reasonable probability be applicable to a single accident, with nothing to apprise the employer of the one which was really relied upon. * * * If this form of notice is good then there is no reason why printed blanks should not be prepared and used setting forth all the known grounds of negligence on the part of an employer, some few spaces being left for details of names, dates and places appropriate to each claim. In the next place, even if we should assume that the claimant was entitled thus to serve a notice setting forth many grounds of negligence on some of which he did not intend to rely, and then in the end select the one which he thought was applicable, we think that there was no statement which fairly and completely described the cause of the accident which killed plaintiff’s intéstate as disclosed by the facts. * * * On the argument before us the plaintiff’s counsel seemed especially to rely on the failure to properly inspect the placé where intestate was placed at work, but it is clear that the statement of failure ‘ to properly inspect, guard and protect the place where he (intestate) was at work,’ does not fairly describe or include what was the underlying cause of the accident, namely, the act of the defendant in allowing an unexploded charge of dynamite to remain in the rocks near where intestate Was placed at work. * * * It is evident that a mere allegation of failure to inspect, guard and protect .a place of work would not reasonably indicate what "the real, producing trouble in this case was as distinguished from many others which might have existed. And precisely the same argument demonstrates the insufficiency of the other somewhat kindred statement that the defendant failed to furnish ‘ a suitable and safe place to work.’ ” In the following cases the notice has been: held to be good (O' Donnell v. Parker Co., 125 App. Div. 475), but there the notice stated, “ specifically the negligent failure and omission of you, your agents and those to whom you had given the power of superin — 811 — tendence to furnish me with a safe and secure scaffold upon and from which to perform said work, and solely by reason of the negligent failure and omissions of you, your agents and those to whom yóu had given the power of superintendence as aforesaid, I fell from said scaffold to the floor' of said basement' and thereby and by reason thereof ” sustained certain injuries; and the court held that it was the duty of the employer to furnish a safe scaffold, and that the defendant was specifically informed by the notice that the precise cause was the negligence of the defendant, its agents and those to whom it had given the power of superintendence to furnish him with a safe and secure scaffold upon which to work, and that owing to such failure he fell from the scaffold and sustained the injuries. Campbell v. Long Island R. R. Co. (127 App. Div. 258). There the notice specified “ the negligence and carele'ssless of the person employed by you and who was entrusted with and actually did exercise superintendence * * * in causing, permitting and allowing a certain rope which was attached to iron that I was trying to put in place to become caiught in or against certain cars that were being operated by your company.” It will be seen that that notice alleged negligence in superintendence and facts causing the injury. In Lobasco v. Moxie Nerve Food Co. (127 App. Div. 677) the court held there was a common-law action as well a,s that the notice was sufficient. In that case the plaintiff was engaged in wrapping bottles, one of which burst and caused the injuries complained of. The notice alleged, among other things, that the master failed to furnish suitable apparatus with which to do said work and furnished defective bottles, “ and did not properly guard same, and *" * . * failed to properly instruct me in the performance of my work, * * * by reason of all of which one of the said bottles exploded and caused the destruction of my eye, as aforesaid.” The particular apparatus referred to was a mask to cover and protect the face, and the court pointed out that the liability to injury without a proper protection for the face was apparent and was appreciated not only by the plaintiff, but by the foreman of the deféndant, who had told' him to continue his work and that some provision to protect him against injury would be made. — 812 — We then- come to two recent cases decided by the Second Department, but before the decision of the Court of Appeals in the Finnigan, Case (supra). (Matrusciello v. Milliken Brothers, Inc., 129 App. Div. 661.) In that, case, leaving out the verbiage, the notice read: “ That I, * * * on April 22nd, 1907, at about 10:30 p. m., while in your employ, working in connection with your contracting operation at Mariners Harbor, Staten Island, Hew .York, was struck, injured" and run over by one of your cars or trains & sustained serious, painful and permanent injuries; ” and then follow general allegations "of various kinds of negligence. The majority of the court, t¡y Mr. Justice Miller, said:. “Eliminating the general statements of negligence, which are mere useless verbiage and would be useless even in a complaint, except possibly to embarrass the plaintiff, the notice states the time, place and cause of tlie injury as" follows: Time, about ten-thirty p. m., on April 22- 1907; the place, where the defendant’s contracting operations were being carried on at Mariners Harbor, Staten Island ; the cause, "the plaintiff’s being struck and run over by one: of the defendant’s cars or trains. . Here is a definite statement of all the statute requires.” - Mr. Justice Rich, with whom Woodward^ J., concurred, concurred in the result upon the ground that the complaint stated facts sufficient to constitute; a cause of action at common law, but held that the notice was insufficient in that it failed to state the cause .of injury as the learned trial justice correctly held, stating:‘“The plaintiff contends that the notice would have been amply sufficient if it had merély. stated that the plaintiff was struck and injured by the defendant’s train and cars. Such statement is the- result of the negligent cause which produced the injury, and not the cause: itself. The cause in the case at bar was correctly stated by the learned counsel in the trial court to have been the starting of the switch train which ran, over the- plaintiff without giving him a-signal or warning. - Had . the notice stated that the cause of his injury was the negligence of the defendant and its agent superintending the work in starting- its switch' train without signal or warning,, as a result, of which it ran over, and injured plaintiff, it would have been sufficient within the" case of O' Donnell v. Parker Co. [supra,] which is.cited to sustain the proposition, but there is nothing in the notice served advising the defendant of the manner in which the accident happened or in what — 813 — manner its agent, charged with the duty of superintendence, had been negligent or failed in the duties he was charged to perform; there is nothing in the notice apprising the defendant that the accident was caused by the starting of its train without signal or warning, which was required to enable defendant to make an intelligent investigation to determine whether any act of its superintendent had rendered it liable, and to preserve the evidence necessai-y to a proper defense, and in all these respects it is insufficient within the rules declared in the cases cited.” In Young v. Bradley & Son (129 App. Div. 679), where Mr. Justice Miller again wrote for the majority of the court, the notice stated that plaintiff was injured : “ By reason of your'failure to furnish me with a safe and proper place in which to do the work which I was engaged to do by you, in that there was no proper platform or scaffold furnished from which to do the work.” The court held that the notice did not contain an accurate statement of the specific cause of injury, and that the question presented was whether the defect was an inaccuracy which could be obviated by proof that there was no intention to ■ mislead, and that the defendant was not, in fact, misled. Mr. Justice Bich, with whom Woodward, J., concurred, pointed out that the complaint alleged a common-law cause of action as well as one under the Employers’ Liability Act, but held that the notice served was insufficient, it not stating the cause of the injury; that he did not think that it presented merely an inaccuracy which could be overcome by proof of no intention to mislead, but that the case came within the principle decided in the Finnigan and Glynn Cases (supra). In the case at bar it is claimed that as the statute provides only that the notice shall state the time, place and cause of the injury, that provision is satisfied by the language of this notice, “ 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 and kill him, as aforesaid that as the cause of death was the fall of the rock and earth and that was stated, that was all that was required under the statute. We are not dealing, however, with this statute as a case of first impression. It has been upon the books for seven years and has been interpreted by many cases. It must be borne in mind that no notice is required for a common-law action — 814 — and that the court charged the jury specifically, and as it is conceded, properly; that the evidence failed to establish that the injury was caused by any one of the instances of negligence pointed out by this notice; that the sole ground upon which this master, under the evidence in this.casé and under the complaint itself, can possibly be held liable is for the negligence of his foreman engaged in an act of superintendence; that that cause of action was one which depends solely upon the statute, and that in the notice there is riot the faintest suggestion that this injury was caused by any negligence in superintendence. The mere fall of a quantity of earth arid rock would not make the master liable; it is only because .that fall was occasioned by the negligent act or omission of the superintendent. Here was a concern prosecuting a great work. If had many employees and many men occupying positions of more or less authority. The purpose of the statute, as pointed out in all the cases, is that as a condition for permitting this new cause of action such notice shall be given that the master may make prompt investigation, ascertain the facts and prepare for his defense. There is absolutely nothing in this notice to call attention to the particular place in this Pennsylvania Terminal excavation on East Thirty-third street, or the particular gang which was engaged in it, and no suggestion of fault by any foreman or superintendent thereof. As said by Hr. Justice Jenks in the Palmieri Case (supra): “ Certain requirements of the notice are to the end that the employer is pointed to the specific act'or omission charged.against him that he may look into it and adjust the claim or resist it as may seem advisable. This provision is just to the master in view of the extension, of his liability by the statute beyond the common law.” What specific act or omission is pointed out by this notice ? As said by Hr. Justice Woodward in the Glynn Case (supra) :: “ For instance, if the accident was caused by reason of the negligence of the superintendent or person occupying that relation, the facts constituting the negligence should be stated, while if 'the accident was due to £ any defect in the Condition of the ways, works or machinery ’ the particular defect should be pointed out; ” and by Hr. Justice Lambert im the Bovi Case (supra): “ It should tell in some way how the accident happened, what was done, who did it, and the result, that the employer may determine his liability and preserve — 815 — the evidence necessary to the proper defense, if he have a defense.” And Mr. Justice Ingraham in the Finnigan Case (supra): “ When liability was extended to every case in which any person charged by him with the duties of superintendence Was negligent so that the employer would be liable for an injury with which he personally had no connection and which he had taken every personal precaution to prevent, he was entitled to notice of just what the accident was so that he could at once investigate the actions of those intrusted with the duties of superintendence and be prepared to meet the charge that such persons had failed in the duties which they were charged to perform. But not only is the notice in this case not a notice of the cause of the accident, but the notice that it does give to the defendant was that the injury was caused by the negligence of the defendant and not by the negligence of a person in its employ who was charged with the duty of superintendence.” Said Mr. Justice Laughlin in the Ortolano Case (supra), after pointing out that the notice contained no reference to negligence in superintendence : “ This notice at most indicates a claim made under the common law, and while it was not essential to' the plaintiff’s right to sue on a common-law liability that he should serve a notice of claim, yet it must be regarded as now well settled that a notice to constitute the basis for an action under the Employers’ Liability Act must fairly apprise the employer that the claim is made under the statute and point out the negligence from which the injury arose.” I think that this notice, which in all respects is similar to that considered by the Court of Appeals in the Finnigan Case (supra), except' that there is added thereto, “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 and kill him, as aforesaid,” comes directly within the reasoning of that decision, and that the language of Hiscook, J., “ If this form of notice is good, then there is no reason why printed blanks should not be prepared and used, setting forth all the known grounds of negligence on the part of an employer, some few spaces being left' for details of names, dates and places appropriate to each - Claim,” applies with precision. It follows that as the notice, which is the foundation of the cause — 816 — of action upon which this judgment rests, was insufficient,.in that it did not, comply with the terms of the statute,- it was erroneously admitted in evidence, and the exceptions taken by the defendant to the denial of its motions are good. , The judgment and order appealed from should be reversed, with costs to the appellant, and a new trial ordered. Laughlin and McLaughlin, JJ., concurred; Ingraham and Scott, JJ., dissented.