183 A.D. 94 | N.Y. App. Div. | 1918
The defendant has appealed from a judgment in favor of the plaintiff for the sum of $16,405.42, entered on the
Under all the circumstances of the case, we are of the opinion that it does not appear that the trial justice improperly exercised the discretion vested in him by ordering a new trial. In view of the fact that there is to be a new trial, it seems advisable to determine the theory upon which the action is maintainable, for in our opinion the action was tried and submitted to the jury upon a wholly erroneous theory. The action is a peculiar one and presents an interesting question.
The plaintiff sues as administratrix of the goods, chattels and credits of her husband, George Ishie, deceased. The cause of action set forth in the original complaint was the ordinary one under section 1902 of the Code of Civil Procedure, to recover $30,000 damages for the negligence of the defendant by which the decedent’s death was caused. The complaint alleged that on or about the 2d day of November, 1911, the plaintiff’s intestate, a painter by trade, being employed by the defendant, and while engaged in discharging his duties as such employee, was precipitated and caused to fall from a ladder, sustaining injuries which resulted in his death on or about the 18th day of February, 1912. ' The answer to this complaint alleged as a defense that on or about the. 14th day of December, 1911, upon claim made and suit brought by the said George Ishie against the defendant for damages on account of personal injuries alleged to have been sustained by him at the time and place mentioned in the complaint, the defendant paid to the said George Ishie the sum of $500 in full settlement of the said claim, and that thereupon the said George Ishie, for and in consideration of said payment, released and discharged under seal this defendant from all claims, and that by reason thereof the said George Ishie accepted, had and acknowledged full accord and satisfaction of any and all claims and causes of action arising out of the matters set forth in the complaint, and that no other or further action arising out of such matters can be maintained against the defendant. Thereafter the plaintiff served an
While the issue of negligence was sharply litigated, the main issue related to the alleged fraud. During the examina
Considering the cause of action as one to recover damages for fraud, it is clear that the fraud, if any, was actually practiced upon the decedent and that it consisted in cheating him into accepting as a compromise of a valid claim in dispute
It is conceded that at common law such a cause of action would not survive. Statutory authority must be found to overrule the common law, and plaintiff’s counsel contends that this is supplied by a proper construction of section 120 of the Decedent Estate Law (Consol. Laws, chap. 13 [Laws of 1909, chap. 18], as added by Laws of 1909, chap. 240, § 16), which reads as follows:
“ § 120. Actions for wrongs, by or against executors and administrators. For wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or after his death, by his executors or administrators, against such wrong-doer, and after his death against his executors or administrators, in the same manner and with the like effect in all respects, as actions founded upon contracts. This section shall not extend to an action for personal injuries, as such action is defined in section thirty-three hundred and forty-three of the Code of Civil Procedure; except that nothing herein contained shall affect the right of action now existing to recover damages for injuries resulting in death.”
Section 3343 of the Code of Civil Procedure, referred to in the provision just quoted, provides: •
“ 9. A ‘ personal injury ’ includes libel, slander, criminal conversation, seduction, and malicious prosecution; also an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff, or of another.
“ 10. 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.”
On the other hand, the opinion of Huger, Ch. J., in the leading case of Hegerich v. Keddie (supra) shows beyond a doubt that the wrong done by negligently causing death is not done to the property rights or interests of the decedent, and that the cause of action therefor, provided by the statute, does not purport to be in any respect a derivative one but is founded upon a personal wrong, already actionable by existing law in favor of the party injured. If the wrong consisted in an injury to the property or estate of the person killed, the cause of action would survive, but in holding in the Hegerich case that a cause of action for negligence resulting in death, given by statute to the representative of the decedent, is abated by the death of the wrongdoer, the court said: “ The wrong defined indicates no injury to the estate of the person killed, and cannot either logically or legally be said to affect any property rights of such person, unless it can be maintained that a person has a property right in his own existence. The property right, therefore, created by this statute is one existing in favor of the beneficiaries of a recovery only, and depends for its existence upon the death of the party injured. It had no previous life and cannot be said to have been injured by the very act which creates it. * * * If, therefore, we consider this cause of action as a property right, it is as such, a right based upon a tort, and, except as otherwise provided by the statute creating it, must be governed by the existing rules of law applicable to' such causes of action.” “ The cause of action is obviously the wrongful act, and the pecuniary injuries resulting afford simply a rule to determine the measure of damages.”
The cause of action is single and consists of injury to the person. This was the cause of action which -the decedent settled, and if he was cheated into parting with his cause of action it was not a property right that he thereby lost
Plaintiff's counsel contends^ however, that “ the foundation of the claim is not of the slightest importance except to show that it was well founded,” and that “ if one is induced by fraud to settle a claim which is worth $2,000 for $1,000, he is just $1,000 poorer, and his estate is just $1,000 less by reason of the fraud, whether his claim was for a breach of contract, tort to property or tort to the person.” This is plausible but it is not sound. If the “ estate ” of the decedent could be said to have been lessened by an inadequate compromise of a cause of action for personal injuries, that could only mean that the cause of action was a property right of ascertainable value, in which case it would be assignable, which of course it is not, and would survive, which it does not. Furthermore, a claim is not “ worth ” anything except as it represents a valid cause of action, and the Court of Appeals has squarely held in Urtz v. N. Y. C. & H. R. R. R. Co. (supra) that in order to recover damages for fraud in procuring a settlement or compromise it is essential to establish as a basis the existence of a valid cause of action. If the decedent had lived and had brought an action for fraud practiced upon him in procuring the settlement, the basis of his right to recover would have been that he had a valid cause of action for personal injuries. To permit the administratrix to maintain the same cause of action, necessarily having the same foundation, would be tantamount to holding that the right to recover for the personal injuries survived.
Even if it were held that the alleged fraudulent settlement • involved an injury to the property of the decedent and lessened his estate, it would not follow that the administratrix could recover the consequent damage where the wrong had its origin in a personal injury. In Murray v. Usher (117 N. Y. 542), which was an action brought to recover damages for negligence causing the death of plaintiff's intestate, the defendants sought to prove that they had paid the expenses
Yet such expenses, of course, if paid by the person injured, would tend to deplete his estate. I think it is clear that the only action maintainable by the personal representatives of a decedent. which, whatever its form, has its real basis in personal injuries to the decedent resulting in his death, is one under the statute, and this irrespective of whether evidence might be adduced to show that, growing out of the injury, pecuniary damages were sustained which lessened the estate of the decedent. As said by the Court of Appeals in McKay v. Syracuse Rapid Transit Railway Co. (208 N. Y. 359,363), in an action brought by a husband as administrator, under the statute, to recover for the negligent killing of his wife, the point being whether his contributory negligence was a defense: “ There can be no doubt that the plaintiff’s negligence would not have defeated a recovery by the wife if she had lived. Her cause of action abated upon her death, but the Legislature has substituted a new action and has specified the condition upon which it may be maintained, i. e., the right of the injured person to maintain an action if death had not ensued. While the measure of damages is different (Code Civ. Proc. § 1904) the right of the personal representative to recover depends solely on the right of .the injured person to recover, if living, unless we are to read something into the statute.” ‘
The case of Price v. Price (75 N. Y. 244) is very much in point. That was an action to recover damages for alleged fraud on the part of the defendant, in that he induced plain
Neither can the action be maintained on the theory that, irrespective of the injuries inflicted upon the decedent, the administratrix had a cause of action under the statute for the death of her husband and that the alleged fraud in effect settled and extinguished her cause of action. As pointed out in Littlewood v. Mayor, etc. (89 N. Y. 24), while the Legislature has the power to exact a double liability for negligent injury, i. e., a liability to the injured party, and upon his death from such injury after a recovery of damages, to his next of kin, it was not its intention so to do by the act of 1847. The intention was “ to provide for the case of an injured party who had a good cause of action, but died from his injuries without having recovered his damages, and in such a case to
But it does not at all follow from the foregoing that the plaintiff is without a remedy. Her action was originally begun upon the proper theory, namely, as an ordinary action under the statute for the cause of action ensuing upon the death of. the intestate caused by the defendant's negligence. When the defendant answered by setting up the release, the validity of its defense depended upon the validity of the release. If the decedent did actually release his cause of action by a valid instrument or if there was a genuine accord and satisfaction, of course that extinguished his cause of action and there could be no recovery by the plaintiff, but if, on the other hand, as the plaintiff should have alleged by way of reply but has alleged, as it may be held, by way of anticipating the defense of accord and satisfaction, the release was procured by fraud, there was no accord and satisfaction and no valid release, and the plaintiff’s right of action existed just as if the paper called a release had never been-signed.
The action' should, therefore, be retried as an ordinary one under the statute, with the additional-issue as to whether the release, relied upon by the defendant, was procured by fraud.
The question may arise whether the plaintiff must tender to the defendant the sum paid to the deceased in settlement or whether it will suffice to offer in the pleadings or upon the trial to have such sum credited upon any possible recovery. This matter has not been briefed or argued and we do not now decide it.
The order for a new trial is affirmed, with costs, and the appeal from the judgment is dismissed, without costs.
• Clarke, P. J., Laughlin and Smith, JJ., concurred; Page, J., concurred in result.
Order .affirmed, with, ten dollars costs and disbursements. Appeal from judgment dismissed, without costs.
See Laws of 1847, chap. 450, as amd. by Laws of 1849, chap. 256, and Laws of 1870, chap. 78; now Code Civ. Proc. § 1902 et seq.—[Rep.