Hegerich v. Keddie

A brief reference to some of the elementary principles, applying to civil actions will serve the purpose, at least, of defining the terms used, and the modifications introduced, into the law by the statutes hereinafter referred to. ■ Such actions were primarily divided into two classes, distinguished as actions ex contractu and ex delicto. The actions known as detinue, trespass, trespass on the case, and replevin were those used in causes of action arising from torts, and were described as actions ex delicto. Trespass on the case was the appropriate form of remedy for all injuries to person or property which did not fall within the compass of the other forms of action. (3 Stephens’ Com..449.) At common law, originally, all actions arising ex delicto died with the person by whom or

It had been held in this State prior to the enactment of the Revised Statutes that an action against the representatives of a postmaster for money feloniously abstracted from a letter by his clerk (Franklin v. Low, 1 Johns. 402 ), and against a sheriff’s representatives for an escape occurring during his

As no reference is made in this case to the Revised Statutes, it is inferred that it arose previous to their enactment, although the case does not disclose that fact. Still the date of the trial, November, 1830, would not necessarily lead to such an inference. The Revised Laws (Yol. 1, p. 311) had theretofore enlarged the scope of the statute of 4th Edward III, and provided for actions by and against executors and administrators for property taken and converted by the testator or intestate during his lifetime. Under this condition of the law the provisions of the Revised Statutes were enacted in 1828, and contain the rule by which this controversy must be determined. Section 1 reads as follows: “ 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 ferson 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 contract.” Section 2. “ But the preceding section shall not extend to actions for slander, for libel, or to actions of assault and battery or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff or to the person of the testator or intestate of any executor or administrator.” It cannot be successfully claimed that the language, “actions on the case for injuries to the person ” up to this time did not include, according to universal classification, all actions without regard to the person or persons to whom they accrued, which had as their cause, or were founded upon injuries to the person of another arising from the negligent or careless conduct of a

Among the questions which have arisen over the construction of these sections the most prominent are probably those relating to the signification of the words “ property rights or interests,” as used in the first section, and the effect of the enumeration in the second section, of certain specific actions as being excepted from the operation of the prior section. It is inferable from the opinions expressed in Haight v. Hayt ( 19 N. Y. 464 ), that the court there supposed that the words “ property rights or interests,” as used in the statute, covered and included all injuries tortiously inflicted by one person to the detriment of another, whether affecting his person or property, and also that the mention of certain actions in the second section manifested an intention on the part of the law-makers to exempt all others, founded on tort from abatement by death. The views expressed on those questions seem to have been unnecessary, as the action there, was for a fraudu

The statute obviously created a great change in the law and applied to a numerous class of cases which had not before been held to survive. Thus it enlarged the rights created by the act of 4 Edward III, so as to include actions for trespass de bonis asportatis against representatives as well as by them, and removed the limitation which authorized other actions for wrongs against representatives only when the estate of their testator or intestate was benefited by the act complained of. The change is illustrated by the case of Benja

Although this action is based upon the theory of a loss of service by the master, it must inferentially have been determined that it did not affect the property rights or interests of the master, dn such manner as to cause the right of action to survive. G-rover, J., in Haight v. Hayt, said “that the statute had changed the law so far as property or relative rights are affected by the wrongful act.” Judge Raballo has said that “ the rights and interests for tortious injuries to which this statute preserves the right of action have frequently been considered, and it is generally conceded that they must be pecuniary rights or interests by injuries to which the estate of the deceased is diminished.” (Cregin v. B. C. R. R. Co., 75 N. Y. 194 .)

Reference to the law as it stood previous to the revision (and the application of the rule of construction embodied in the maxim of nosoitur a sooiis) would seem to require such an interpretation of the words “ property rights or interests ” "as will confine their application to injuries to property rights only, and such as were theretofore enforceable by the deceased. It is stated in 1 Wms. on Exrs. 677, “ that no action is maintainable by the executor or administrator upon an implied or express promise to the deceased when the damage consisted entirely in the personal suffering of the deceased without any injury to his personal estate.” Chamberlain v. Williamson (2 M. & S. 408) is cited in support of this proposition. In that case Lord Ellenborough said : “ Executors and administrators are the representatives of the personal property, that is the debts and goods of the deceased ; but not of their wrongs except when those wrongs operate to the temporal

This view of the law was approved in a similar case in this court. (Wade v. Kalbfleisch, supra.) It was said in People v. Tioga Com. Pleas (supra), by Cower, J., that “the cases in respect to executors and insolvent assignees, and the like, certainly go very far to direct what we are to consider matter of property or estate, so far that it can be touched by a contract, and made a subject of transfer between parties in any way at law or in equity; if the right be not so entirely personal that a man cannot by any contract place it beyond his control, it is assignable under the statutes of insolvency, or will, on his death, pass to his executors. The reason is because it makes a part of his estate; it is matter of property, and as such it is in its nature assignable. On the contrary, if it be strictly personal, it is beyond the reach of contract. In the same sense we say of many rights they are inalienable. Ho one would pretend that a man’s person could be specifically affected by contract; though he should bind himself by indenture, equity could not enforce the agreement. (Mary Clark's Case, 1 Blackf. 122 .) So of a man’s absolute personal rights in general, as his claim to safety from violence, and his relative rights as a husband, a father, a master, a trustee, etc.” This case was approved in McKee v. Judd ( 12 N. Y. 622 ), and it was there said by Grover, J., that “demands arising from injuries strictly personal, whether arising upon tort or contract, are not assignable; but that all others are.” In Green v. Hudson R. R. R. Co. ( 28 Barb. 9 ) approved in Whitford v. Panama R. R. (supra), it was held that the husband at common law could not maintain an action for negligence causing the death of his wife;

From the same review, it is quite evident that the authors of the statute, intended explicitly to provide for the abatement of causes of action for personal injuries occurring to the plaintiff, or to his intestate or testator. The assignability and survivability of things in action have frequently been held to be convertible terms, and perhaps furnish as clear and intelligible a rule to determine what injuries to property rights or interests are meant by the statute, as it is possible to lay down. (People v. Tioga Co. Com. Pleas, supra; Zabriskie v. Smith, supra.)

The rights of property only which are in their nature assignable and capable of enjoyment by an assignee are those referred to in the statute. Such rights as arise out of the domestic relations clearly do not possess the attributes of property, and are not assignable by the possessor. (Id.)

The provisions of the Devised Statutes were; however, modified by chapter 450 of the Laws of 1847, as amended by subsequent statutes, giving an action against persons and corporations, to the representatives of a deceased person, for the benefit of the husband or widow and next of kin, to recover damages for the pecuniary injuries suffered by them where death was caused by the'wrongful act, neglect or default of another, and the act, neglect or default was such as would (if death had not ensued) have entitled the party injured to maintain an action therefor, and in respect thereof against the per

We are now to consider the effect which these statutes produced upon the law as it previously existed. The cause of action here provided for has been held not to be a devolution, but a new one calling for the application of another rule of damage and distinguished by many other attributes. (Whitford v. Panama R. R. Co., supra; Haight v. Hayt, 19 N. Y. 464 ; McDonald v. Mallory, 77 id. 546 ; Littlewood v. Mayor, etc., 89 id. 24; Blake v. Midland R. R. Co., 18 A. & E. 93; Leggott v. Gt. N. R’y Co., L. R., 1 Q. B. D, 604; Russell v. Sunbury, 37 Ohio St. 372 ; Yertore v. Wiswall, 16 How. Pr. 8 .) That it is founded upon the wrongful act of the party causing the death, and gives a right of action therefor to the representatives of the deceased, for the pecuniary consequences suffered by the husband, wife or next of kin from such wrongful act, is also established by the same authorities.

The cause of action is obviously the wrongful act, and the pecuniary injuries resulting afford simply a rule to determine the measure of damages. However much the husband, widow or next of kin may suffer pecuniarily by the act causing death it constitutes no cause of action, independent of evidence, that it was occasioned by the wrongful or negligent conduct of another. Proof that it occurred in consequence of the contributory negligence of the deceased person, or without the fault of the defendant, furnishes a perfect answer to such an action and a conclusive reason why the death' produced by the wrongful act is the cause of action. The cause of action here provided for does not purport to be in any respect a derivative one, but is an original right conferred by the statute, upon representatives for the benefit of beneficiaries, but founded upon a wrorig already actionable by existing law in favor of the party injured, for his damages. The description of the actionable cause, seems to have been inserted merely to characterize the nature of the act which is intended by the statute to be made actionable, and to define the kind and degree of delinquency with

It will be observed also that the statute, although creating a new cause of action, and passed for the express purpose of changing the rule of the common law in respect to the survivability of actions, and conferring a right upon representatives which they did not before possess, does not undertake, either expressly or impliedly, to impair the equally stringent- rule which precluded the maintenance of such actions against the representatives of the offending party.

The plain implication from its language would, therefore, seem to be at war with the idea that the legislature intended to create a cause of action enforceable against, as well as by representatives. The cause of action thereby given is not to the estate of the deceased person, but to his or her representatives as trustees, not for purposes of general administration, but for the exclusive use of specified beneficiaries. (Dickins v. N. Y. Cent. R. R. Co., 23 N. Y. 158 ; Yertore v. Wiswall, 16 How. Pr. 8 .)

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 in jured by the very act which creates it. Whatever claim a wife or children have at law upon the husband and father for support perishes with the life of such person, and thereafter their claims upon his estate are governed by statutory rules.

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 case of Littlewood v. Mayor, etc. ( 89 N. Y. 24 ), holding that such causes of action may be settled and discharged by

We have carefully considered the case of Needham v. Grand T. R. R. Co. ( 38 Vt. 294 ), but inasmuch as the statutes in that State affecting the question are so different from our own, little analogy exists between the question there presented and the one under consideration. The case of Yertore v. Wiswall

The complaint in the present action describes a cause of action arising out of the death alone, and suggests no injury to the estate or property of the deceased. Such a cause of action is abated by the death of the wrong-doer.

The judgment of the General Term should, therefore, be reversed, and that of the Special Term affirmed.

All concur; Finch, J., in result.

Judgment accordingly.