WILLIAM T. McRAE vs. NEW YORK, NEW HAVEN, AND HARTFORD RAILROAD COMPANY

HAMMOND, J. This is an action of tort to recover for personal injuries caused to the plaintiff by a fall. The declaration contained three counts, the first at common law, and the second and third under the employers' liability act. R. L. c. 106, § 71. The jury found for the defendant upon the first count, and for the plaintiff upon the second and third. The case is before us upon the defendant's exceptions.

One of the questions raised is whether the judge should have ruled as requested by the defendant that the plaintiff could not recover upon either the second or third counts. Upon this it appeared that the action was not brought until more than one year - nearly two years - after the accident occurred ; and it is contended by the defendant that for that reason, if for no other, there can be no recovery upon these counts. As already stated, these counts are based upon R. L. c. 106, § 71. It is provided in § 75 of that chapter that "no action for the recovery of damages for injury or death under the provisions of §§ 71-74, inclusive, shall be maintained unless notice of the time, place and cause of the injury is given to the employer within sixty days, and the action is commenced within one year after the

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accident which causes the injury." If this provision as to the time within which the action may be brought is merely a statute of limitation affecting only the remedy, then it must be pleaded in the answer in order to be availed of as a ground of defense. Such a defense is regarded as a matter of avoidance because it admits a cause of action once to have existed. Sawyer v. Boston, 144 Mass. 470. Emmons v. Hayward, 11 Cush. 48. Middlesex Company v. Osgood, 4 Gray 447. R. L. c. 173, §§ 24, 27. If not set up in the answer it is regarded as waived, and cannot be raised at the trial. In the case before us the answer was simply a general denial. If, however, the provision as to time is to be regarded as one of the conditions of the right to maintain the action, then the plaintiff must show as a part of his case that he has complied with the condition. And in such circumstances the contention of a defendant that this provision of the statute has not been complied with is not in the nature of avoidance, but a denial of one of the facts essential to the plaintiff's case. A general denial therefore in such a case raises the question. And that is so under our practice act, even if there is no allegation upon that matter in the declaration. Davis v. Travis, 98 Mass. 222. Hill v. Crompton, 119 Mass. 376.

Under the pleadings in this case it, therefore, becomes necessary to determine the nature of the provision in question. The kind of legislation finally ending in R. L. c. 106, §§ 71 et seq. began with St. 1887, c. 270; and, although this act had been amended several times, yet, inasmuch as this provision as to time has been continued all the way through substantially the same and must be regarded as having the same meaning throughout the whole legislation, it is useful to refer to the act.

This act greatly enlarged the rights of employees or their representatives to recover damages in case of injury or death. It gave a right of action where none would have existed at the common law, and it provided that "no action for the recovery of compensation for injury or death under this act shall be maintained, unless notice of the time, place and cause of the injury is given to the employer within thirty days, and the action is commenced within one year, from the occurrence of the accident causing the injury or death." Is this provision as to the

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one year simply a statute of limitation affecting only the remedy, or is it one of the conditions upon which the right of action depends? The question is narrow, and not entirely free from difficulty.

In support of the proposition that it is simply a statute of limitation, it may be argued that the provision presupposes the existence of a complete right of action after the notice is given for at least the rest of the year, and that at least to this right of action the clause in question is plainly not essential; that the language as to bringing an action after the expiration of the year is no stronger than may be found in the general statute of limitations, and that full effect is given to the clause if it be regarded simply as a provision shortening, in this particular action, the time usually allowed in actions for personal injuries from six years to one year; that such is the most natural construction, and that the statute being remedial should be liberally construed in favor of those to whom the new action is given.

But, notwithstanding these and other obvious considerations in the same line, we cannot adopt this view of the clause in question. It is to be noted that this clause is preceded by that as to notice, both clauses being in the same sentence. It has been settled that the clause relating to the notice is a condition precedent to the right of action, or in other words that the giving of the notice is one of the essential elements of the cause of action ; and that where the declaration fails to allege the proper notice the question can be raised by demurrer. Veginan v. Morse, 160 Mass. 143, and cases cited. In this part of the statute the Legislature seems to be dealing with conditions upon which the right of action given in previous parts of the statute should be availed of. It imposes two conditions, one as to notice and one as to the time in which the action should be brought. The language as to the necessity for the existence of the one is the same as that with reference to the necessity for the existence of the other. One has already been declared to be a condition precedent. The right of action is created by the statute and is maintainable solely by its authority. In view of these considerations, we think that the same rule must be applied to the second condition as to the first, and that this limitation of time must be regarded not merely as a statute of limitation but as one of the

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conditions of a right of action. It forms one of two conditions, each of which is essential to the right of action. The right must be accepted and pursued under the conditions affixed to it. For cases in which a similar conclusion is reached upon statutes resembling our statute in this respect, see among others Maylone v. St. Paul, 40 Minn. 406 ; Hill v. Board of Supervisors, 119 N. Y. 344 ; Hanna v. Jeffersonville Railroad, 32 Ind. 113 ; Taylor v. Cranberry Iron & Coal Co. 94 N. C. 525 ; Best v. Kinston, 106 N. C. 205 ; Elliott v. Brazil Block Coal Co. 25 Ind. App. 592 ; Stern v. La Compagnie Generale Transatlantique, 110 Fed. Rep. 996, and cases cited. See also Barker v. Palmer, 8 Q. B. D. 9 ; Johnston v. Shaw, 21 Sc. L. R. 246. Where the facts appear in the declaration the question can be raised of course by demurrer. Hill v. New Haven, 37 Vt. 501, 511.

It follows that this defense was open to the defendant upon the general denial contained in its answer; and that the instructions requested by the defendant that the plaintiff could not recover on either the second or the third counts should have been given. The exceptions to the refusal to give these requests are sustained. The record shows no reason for disturbing the verdict on the first count. It becomes unnecessary to consider the defendant's other exceptions.

Exceptions sustained.

J. L. Hall, for the defendant.

M. A. Sullivan, (B. R. Wilson with him,) for the plaintiff.