
    Edwin Maxson, Resp’t, v. The Delaware, Lackawanna and Western R. R. Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    1. Negligence—Limitation of action by husband fob injury to wife— Code Crv. Pbo., § 383, subdivision 5.
    An action by a husband to recover damages for the loss of services, society, etc., of his wife in consequence of an injury received by her through the negligence of the defendant must be commenced within three, years after the cause of action accrued.
    2. Same—Husband and wife—Loss of services of wife a personal injury—Code Crv. Pro., § 343.
    The injury occasioned to a husband by the loss of the- services of his. wife in.consequence of injuries received by her through the negligence of' the defendant is a personal injury.
    3. Same—Right of action for injury.
    A husband, parent or mother has a right of action for any injury to a wife, minor child or servant when caused by the actionable acts of another. Cregin v. Brooklyn, etc., B. B. Co., 83 N. Y., 595, distinguished.
    Appeal from order of supreme court, general term, fifth, department, modifying an interlocutory judgment sustaining a demurrer.
    
      Chas. J. Bissell, for appl’t; F. C. Peck, for resp’t.
    
      
       Reversing 15 N. Y. State Rep., 650.
    
   Gray, J.

The question presented by this appeal is,, whether the action was barred; because it was not commenced within three years after the cause of action accrued. It was brought to recover damages, alleged by plaintiff to have been sustained by him, in the loss of his wife’s services, and of the comforts of her society, as the result of injuries inflicted upon her through the negligence of the defendant.

The general term, in affirming the judgment of the special term which sustained plaintiff’s demurrer to the defense of the statutory limitation, in their opinion, held that, in so far as the plaintiff’s cause of action was for the loss of his wife’s services, it was an injury to property, and could be. "brought within six years. We think they were in error, and that the defense interposed was complete. Section 382 of the Code of Civil Procedure, prescribes a limit of six years for the commencement of “an action to recover damages for a personal injury, except in a case where a different period is expressly prescribed in this chapter.” Such an exception is found in the following section of the Code (section 383, subdivision 5), where a limit of three years is prescribed for the commencement of “an action to recover for a personal injury, resulting from negligence.”

_ It might be supposed that the reading of these two sections would suffice for the conclusion that, where a cause of -action existed for damages, in any way suffered by reason of an injury to the person through another’s negligence, in • order to escape the statutory defense of delay, it must be .acted upon within the period of three years prescribed by section 383. But the opinion of the able judge at general term, and the authority which he relies upon, in the case of Groth v. Washburn (34 Hun, 509;, are of such weight as to require some discussion of the question.

In Webber v. Herkimer, etc., R. R. Co. (109 N. Y., 311; 15 N. Y. State Rep., 262), we held that where the source of the personal injury complained of is in the negligence of the defendant, the action must be commenced within three years, and that, in all such actions against carriers of passengers, the liability of the defendant is based solely upon negligence.

In this case, there is no question but that the gravamen of the plaintiff’s complaint is the alleged negligence of the defendant or of its servants, by reason of which his wife received bodily injuries, of such a character, as, in addition to causing her pain and suffering, disabled her from performing such services as a husband may be presumed to be entitled to on the part of his wife. The law gives to the husband, to the parent and to the master, a right of action for any injury to the wife, minor, child or servant, when •caused by the actionable acts of another, per quad, servitum amisit. This fiction of the law, which sustains such an .action against others, is not without its admirable features; .inasmuch as it gives a remedy for an injury to domestic .rights, and serves as a check upon their molestation. '

At the bottom lies the personal injury suffered by the plaintiff) and where it is suffered through the negligent conduct of the defendant towards the individual, whose relation to the plaintiff, gives rise to the right to maintain the action, it is difficult to understand the argument that the limitation of time prescribed in section 383, does not apply. It is certainly a “ personal injury resulting from negligence ” in the defendant. To hold that the sense of these words is'in their application to the body of the plaintiff, seems as much a narrowing of the ordinary import of language, as it is really contrary to the interpretation which we find given elsewhere in the Code.

By reference to subdivision 9 of section 3343, in the chapter of definitions in our Code, we find that a ‘ personal injury ” is “an actionable injury to the person, either of the plaintiff or of another.” This provision was derived from the second section of chapter 449 of the Laws of 1876. As originally enacted there, a personal injury was “ an actionable injury to the person of the plaintiff, or of his or her wife, husband, child or servant.”

It is evident that the legislature, in enacting subdivision 5 of section 383, whereby a limitation of three years is prescribed for the commencement of an action for a “ personal injury resulting from negligence,” has intended it to apply •as well to actions growing out of an injury to the body of any of the persons enumerated in the section of the act of 1876, mentioned, as to the plaintiff’s own body. In the absence of language in the provisions of the Code justifying it, we can see no reason for classifying separately, with respect to the chapter of limitations, those actions for a personal injury resulting from negligence, which die with the plaintiff’s death, and those, which survive to the administrator.

Actions to recover damages for a personal injury, must he commenced under the Code within six years, in all cases; execept that for a personal injury resulting from negligence, the limitation of time is three years, and for libel, slander, assault, battery, or false imprisonment, it is two years. How can the fact, that the personal injury complained of has brought about a diminution of or loss to one’s estate by reason of the expenses incurred or services lost, affect the question of limitation, if that injury resulted from defendant’s negligence ? The Code does not make the distinction.

In endeavoring to separate the cause of action, and to bring that portion which rests on the loss of services within the statutory limitation of six years, it is impossible to overcome the difficulty in the way of the endeavor that the •action arose out of the defendant’s negligence, and thus is comprehended within the provision of section 382. But, further, it may be added that though in an action for damages for an injury to property, a limitation of six years is imposed, yet by reference again to the chapter of definitions, we find in subdivision 10 of section 3343 that the legislature has excluded from the class of actions based on an injury to property, actions arising out of a personal injury; for it reads: “'An injury to property is an actionable act whereby the estate of another is lessened, other than a personal injury, or the breach of a contract.” I am not able to read that language in any other sense than that; when it is brought to recover on a cause of action based upon an injury to property, a cause of action based on a. personal injury is not to be deemed included. The general term below have relied upon the case of Cregin v. The Brooklyn, etc., R. R. Co. (83 N. Y., 595). What was decided there was that in an action for a wrongful injury to-the person of plaintiff’s wife, whereby he suffered damages' in the loss of her society and services and in the attendant expenses upon his death, the right of action survived and vested in his administrators as to the damage for loss of services, etc., but abated as to damages for the loss of her society and its comforts. It was held in that case that though the plaintiff’s cause of action was single in one sense, his right to damages therefor was compound and. consisted of diverse elements, and became separable upon his death as to the pecuniary loss by which his estate had', been diminished. But no inference or conclusion is to be drawn from the decision of the court in that case, that-because the personal injury complained of caused a diminution in the plaintiff's estate, the action was converted into one for an injury to property.

It is authority for the proposition that, in so far as the-cause of action, based on the personal injury, is separable in its elements of damage, as to that damage which is tangible in the sense that it is appreciable by those interested in the administration of the estate, pro tanto, the cause of action, though growing out of a personal injury, may be-continued, under the statute, by the administrator.

It would be an anomalous condition of the statute law, iff while an individual would be limited in his right to bring an action' for an injury to his body, resulting from the-defendant’s negligence, to the period of three years, as to-all elements of damage; yet if another, to' whom the right-might appertain to maintain an action for that same injury, sues, the time is enlarged to six years, on the theory that it was an injury to property. We do not find support for-such a construction of the statute and we do not believe-any such condition of things was intended by the legislature.

The language of the Code, in the fifth subdivision of section 383, is broad enough to cover every case where the action is founded on the fact of an injury occasioned to a person by negligence, whether the person is 'that of the plaintiff, or that of another individual, for whose injury the plaintiff is entitled to bring the action. The result of the injury in either case comprehends a loss to the estate, as well as bodily suffering and discomforts; and shall we-say that where the loss to the estate arises to the plaintiff from the injury to the person of another, a different rule as. to the limitation of time governs?

In this case the wife’s right to sue the defendant was lost by the lapse of three years; but it is proposed to give to the husband a right to maintain an action on the same ground and on the same proofs, but for the loss of her services, for six years -from the time it accrued. We cannot concur in any such conclusion and we think such an interpretation of the law to be unsound.

The judgment of the general term, affirming the judgment at special term sustaining the demurrer, should be xeversed and the demurrer overruled, with costs in all the •courts to the appellant.

All concur.  