
    Carrie A. Lichtenstern, Respondent, v. Augusta-Aiken Railway and Electric Corporation, Appellant.
    First Department,
    December 31, 1914.
    Negligence — action under foreign statute for death —sufficiency of complaint — breach of contract of employment not basis for action in tort for employee’s death.
    A complaint in an action against a foreign railway corporation to recover under the foreign statute for the death of an employee, a motbrman, which alleges that the decedent was employed during a strike on defend ant’s road, under an agreement that he “ would be protected and saved " harmless from all loss, injury, damage and liability,” and that while in .the performance of his duties he was assaulted by strikers and received injuries resulting in his. death; 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 hereiribefore Sescfibed, "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,” but which neither alleges that the defendant failed to use reasonable care to protect the deceased nor that it was negligent in the performance of its contract of employment, does not state facts sufficient to constitute a cause of action under the statute of the foreign State which provides, in substance, that recovery for homicide may be had by the mother, or, if no mother, the father of a child minor or sui juris, unless said child shall leave a wife, husband or child, and which defines such homicide to include all cases where the death of a human being results from a crime or from criminal or other negligence. Negligence is used in said statute in its ordinary legal sense.
    The mere breach by defendant of its contract obligation cannot be made the basis of an action in tort for the decedent’s death.
    The cause of action for the death of a person is wholly statutory and is governed by the statute of the State where the death was caused.
    Appeal by the defendant, Augusta-Aiken Railway and Electric Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of September, 1914, granting plaintiffs motion for judgment on the pleadings after a demurrer had been interposed to the complaint.
    
      William R. Begg, for the appellant.
    
      Eugene I. Yuells, for the respondent.
   McLaughlin, J.:

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 employees and while the same was in progress one Irving A: Lichtenstern was employed by the defendant as a motórman on one of its cars; that he accepted;the empldyment'up'on. the assurance and undertaking that hevrould 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 ‘J 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 hereinbefore 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.

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. N. Y., L. E. & W. R. R. Co., 98 N. Y. 377; Duncan v. St. Luke’s Hospital, 113 App. Div. 68) and depends upon the statute of the State where the death was caused. (Debevoise v. N. Y., L. E. & W. R. R. Co., supra; Gurofsky v. Lehigh Valley R. R. Co., 121 App. Div. 126.)

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 question presented, therefore, is whether the complaint alleges that the deceased came to his death through the negligence of the defendant within the meaning of the statute above quoted. In the absence of any authority to the contrary it must be assumed that the statute uses the word “negligence” in its ordinary legal sense. (Duncan v. St. Luke’s Hospital, supra; Singleton v. Felton, 101 Fed. Rep. 526.) Putting this construction upon the statute, I am of the opinion that the complaint does not state a cause of action. It contains no allegations to the effect that the defendant failed to use reasonable care to protect the deceased, and that was, of course, the extent of its obligation. There is no common-law duty on the part of an employer to protect his employees from assault by strangers. It is true that the defendant is alleged to have agreed, at the time the deceased was employed, that he “ would be protected and saved harmless from all loss, injury, damage and liability,” but defendant’s failure to perform this contract obligation does not, in itself, constitute negligence. Nor are there any allegations in the complaint to the effect that the defendant was negligent in the performance of its contract. From all that there appears defendant may have exercised a very high degree of care in the protection of the deceased. In this respect the case at bar is clearly distinguishable from Duncan v. St. Luke’s Hospital (supra; affd., 192 N. Y. 580), upon which the respondent relies.

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. N. Y. C. & H. R. R. R. Co., 87 N. Y. 382; Stelz v. Van Dusen, 93 App. Div. 358; Lewis’ Admr. v. Taylor Coal Co. of Ky., 112 Ky. 845.) In the Lewis case the facts were quite similar to those set out in this complaint. There, a large number of employees of defendant, who were union men, were on a strike, and nonunion employees were frightened from continuing in defendant’s employ by threats of the strikers. Plaintiff’s intestate, a non-union man, was threatened and communicated that fact to defendant’s superintendent, who then agreed, in consideration of 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. Fleischhauer, 26 App. Div. 210; Tuttle v. Gilbert Mfg. Co., 145 Mass. 169; Glenn v. Hill, 210 Mo. 291.)

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

Clarke, Laughlin, Scott and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to plaintiff to amend complaint on payment of costs in this court and in the court below. 
      
       Sée Code of Georgia, 1910, §§ 4434, 4435 (3838, 3839).— [Rep.
     
      
       See Kentucky."Statuíhs¡.:Í9D9, §§.6’ ÍO.— [Rep. i.
     