Plaintiff’s intestate, Alphonse Fontheim, was rendered incompetent from injuries suffered in an accident on December 22, 1937. Suit for personal injuries was instituted in his behalf against this defendant through a guardian ad litem appointed for that purpose. During intestate’s lifetime the action was reduced to judgment, which this defendant satisfied by payment in full.
Subsequently and on June 30, 1938, Fontheim died of his injuries. This action was then commenced by his next of kin to recover damages for his wrongful death. As a separate and complete defense and bar to the present action defendant set up the
The following question is thus presented for determination: Is a judgment recovered by an injured person during his lifetime for personal injuries resulting from an accident, and which judgment has been рaid, a bar to an action by his next of kin under section 130 of the Decedent Estate Law for death alleged to have resulted from the same accident?
In 1847 a cause of action for wrongful death in favor of the next of kin was allowed by statute, and the law has remained substantially unchanged since. So far аs pertinent it now reads as follows: “ The executor or administrator duly appointed * * * of a decedent who has left him or her surviving a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent’s death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof if death had not ensued.” (Laws of 1847, chap. 450, as amd.; Dec. Est. Law, § 130.)
In 1935, upon the recommendation of the Law Revision Commission to the- Legislature, new statutes [Decedent Estate Law, sections 118, 119, 120 (Laws of 1935, chap. 795)], relating to the survival of causes of action for personal injury, were enacted to correct numerous injustices in the law as it had theretofore existed. (N. Y. Legis. Doc. [1935] No. 60-E, p. 3; Report of Law Revision Commission for 1935; p. 159 et seq.) These inequities were as follows: (1) The right of recovery in favor of the injured person or in favor of the next of kin in case of wrongful death.was lost if the wrongdoer died before a judgment had been recovered. (2) There could be no recovery if the injured person died before judgment from causes other than the injury. (3) There could be no redress aftеr death for the pain and suffering endured by decedent and for his loss of earnings from the time of the injury to the date of his death. Under the new section 118 of the Decedent Estate Law an action for personal injury no longer abates on the death of the wrongdoer, and under section 119 a personal injury aсtion is no longer lost because of the death of the injured person, but such action “ may be brought or continued by the executor or administrator of the deceased person.” By the provisions of section 120 the damages recoverable where an injury causes the death of a person arе limited to those accruing before death and form part of the-estate of the deceased; the right of action existing
It is the contention of respondent that since these amendments of the 1935 statute, a judgment rendered in a personal injury action before death no longer bars a subsequent death action because the former abated personal injury action is now an аdded right of action to the one permitted for wrongful death.
We do not think that sections 119 and 120 of the Decedent Estate Law, as recently added, have this effect. Notwithstanding these new sections, the condition precedent to the wrongful death action still remains, namely, — the injured person must have had a right оf action to recover for personal injuries at the time of his death. It is important to note that the language of section 130 of the Decedent Estate Law was left unchanged and that it contains substantially the same language as the wrongful death statute when originally adopted. It still provides that an aсtion to recover damages for a wrongful act, neglect or default resulting in death may be maintained only “ against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof if death had not ensued.”
In construing this seсtion in the original death statute (Laws of 1847, chap. 450) the Court of Appeals held, in Littlewood v. Mayor, etc., of New York (
The law, as it existed before the enactment of the new survival sections of the Decedent Estate Law, is epitomized by the Court of Appeals in the case of Kelliher v. N. Y. C. & H. R. R. R. Co. (
“Wе think the framers of the section considered that no action should he maintainable under it unless the decedent, at the time of his death, could have maintained an action. The section has been held to bar an action in favor of the representative where his dece*150 dent in Ms lifetime recovеred a judgment for personal injuries, which was afterwards paid (Littlewood v. Mayor, etc., of N. Y., supra); or where there has been a settlement between the rnjured person and the party charged with negligence (Dibble v. N. Y. & Erie R. R. Co., 25 Barb. 183); or where the defendant is released from liability by the agreement of the intestate (Hodge v. Rutland R. R. Co.,112 App. Div. 142 ; affd.,194 N. Y. 570 ); or where, the mtestate was guilty of suсh contributory negligence as would have barred an action by him. (Shearman & Redfield’s Law of Negligence [6th ed.], § 140a, and cases cited.)
“ In the case at bar the decedent allowed the tMee years to expire within wMch he was permitted to commence an action. His subsequent death could not revive the cause of action based upon Ms mjuries in favor of Ms representative. By the express language of the statute the wrongdoer is liable to the representative only in a case where he would have been liable to the decedent had death not ensued.” (Italics ours.)
To determme whether the Legislaturе intended any change in the effect of section 130 of the Decedent Estate Law in enactrng the new section's (sections 118, 119 and 120 of the Decedent Estate Law), recourse properly may be had to the proceedings of the Legislature wMch induced their adoption. “ As Blackstone tersely expressed it, in the Mterpretation of statutes due regard must be had to the old law, the miscMef and the remedy. The miscMef may be mdicated or made apparent by the debates attend-mg the adoption of the remedy, as well as by contemporaneous events and the relevant situation as it existed.” (Woollcott v. Shubert,
The Lаw Revision Commission, created by the Legislature (Legislative Law, art. 4-A, added by Laws of 1934, chap. 597), was charged with the duty of examining the common law and statutes of the State and current judicial decisions for the purpose of discovering defects and anachronisms in the law and recommending needed reforms. This Cоmmission was directed “ to report its proceedmgs annually to the Legislature * * * and, if it deems advisable, to accompany its report with proposed bills to carry out any of its recommendations.” In keeping with this mandate, in 1935 it recommended for passage bills embodying the new sections 118, 119 and 120 of the Decedent Estate Law. These were enacted without any modifiсation. (Laws of 1935, chap. 795.) The report of the Commission and its recommendations to the Legislature which accompanied the bills become persuasive as a guide to the
Thus (at p. 55) the Commission said: “ When a party commences an action for personal injuries, he seeks a recovery of damages commensurate with his estimate of the extent of such injuries. If it appear to the court and/or jury that the injured person will be permanently disabled, the verdict will afford complete compensation for all phases of the injury. In this situation, it is obvious that a recovery under the wrongful death statute, assuming the injury causes premature death, would result in а duplication of damages. Here, one right of action affords complete relief.” (Italics ours.)
■ And (at p. 56) we find the following language: “ The basis upon which the overwhelming majority of the courts refuse to allow the action by the personal representative after a judgment or release by the deceased maybe generally designated as a public policy аrgument. It has been suggested that to hold a recovery of a judgment or release not a bar would subject the defendant to a double liability which would in effect make the wrongful death statute penal and therefore contrary to sound public policy. Some courts also argue that such a holding would make it difficult to procure settlements of wrongful injuries because wrongdoers would be reluctant to settle if they knew that they might later be subject to another action if the injured person died as a result of the injuries. As the policy of the law is to favor compromise and settlement of claims, a contrary holding wоuld defeat this policy.” (Italics ours.)
And (at p. 57) this observation is made: “ In Kelliher v. N. Y. C. & H. R. R. R. Co., the Court of Appeals held that where the decedent’s right is barred by the Statute of Limitations, the right of the personal representative under the wrongful death statute is also barred because the deceased if alive could not have an action. While arguments may he presеnted in support of the contrary view, it is submitted that practical considerations justify the retention of the present law.” (Italics ours.)
Obviously, if it had been the intention of the Legislature to allow a recovery in a death «action though the decedent could
Recent decisions of the Court of Appeals indicate that a judgment for personal injuries recovered by a decedent during his lifetime is still a complete defense and bar to an action for his wrongful death. Thus in Kwiatkowski v. Lowry, Inc. (
In Johnson v. Stromberg-Carlson Telephone Mfg. Co. (
Notwithstanding the apparent separate nature of the two causes of action which now exist under the statute, the weight of authority generally is that in such a situation a release or a recovery by the injured party in his lifetime will bar a suit by the next of kin or by the decedent’s representatives for the death. (Brodie v. Washington Water Power Co.,
We believe it well settled that in this State a judgment recovered by an injured person during his lifetime for personal injuries resulting from accident constitutes a bar and a complete defense to an action brought undеr section 130 of the Decedent Estate Law, and for reasons heretofore stated, we think that this doctrine is in no way affected by the adoption of the survival statutes which swept away the rule that an action for personal injury abated upon the death of the injured party or of the wrongdoer.
The order of the Special Term should, accordingly, be reversed, with twenty dollars costs and disbursements, and the motion to strike out the second separate and complete defense should be denied.
Martin, P. J., Glennon, Untermyer and Callahan, JJ., concur.
Order unanimously reversed, with twenty dollars costs and disbursements, and the motion to strike out the second separate and complete defense denied.