Hegerich v. Keddie

• Citation: 99 N.Y. 258,1 N.E. 787
• Parties: HEGERICH, Adm'x, etc., v. KEDDIE, Ex'r, etc.
• Decision Date: 09 June 1885
• Court: New York Court of Appeals

99 N.Y. 258

1 N.E. 787

HEGERICH, Adm'x, etc.,

v.KEDDIE, Ex'r, etc.

Court of Appeals of New York.

Filed June 9, 1885.

John L. Lindsay, for appellant, John Keddie, Ex'r, etc.

Geo. V. N. Baldwin, for respondent, Eliza Hegerich, Adm'x, etc.

RUGER, C. J.

A brief reference to some 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 Steph. Comm. 449. At common law, originally, all actions arising ex delicto died with the person by whom, or to whom, the wrong was done. Thus, when the action was founded on any malfeasance or misfeasance, was a tort, or arose ex delicto, such as trespass for taking goods, etc., trover, false imprisonment, assault and battery, slander, deceit, diverting a water-course, obstructing lights, escape, and many other cases of the like kind, where the declaration imputes a tort done either to the person or property of another, and the plea must be ‘not guilty,’ the rule was, ‘ actio personalis moritur cum persona.’ 1 Williams, Ex'rs, 668. It was, however, however, held in Hambly v. Trott, Cowp. 376, Lord MANSFIELD delivering the opinion, that ‘if it is a sort of injury by which the offender acquires no gain to himself at the expense of the sufferer, as beating or imprisoning a man, etc., then the person injured has only a reparation for the delictum in damages, to be assessed by a jury. But when, besides the crime, property is acquired which benefits the testator, then an action for the value of the property shall survive against the executor.’ ‘So far as the tort itself goes, an executor shall not be liable, and therefore it is that all public and private crimes die with the offender, and the executor is not chargeable; but, so far as the act of the offender is beneficial, his assets ought to be answerable, and his executor, therefore, shall be charged.’ By the statute of 4 Edw. III. c. 7, actions de bonis asportatis were given to the executors of a deceased person for personal property taken from their testator and carried away, but for all other causes of action arising out of wrongs done, either to the person or property, the rule of ‘ actio personalis moritur cum persona’ applied. 1 Williams, Ex'rs, 672. Under the clause of the constitution making the rules of the common law the law of the state, it must be held that these rules still determine the survivability of actions for torts, except where the law has been specially modified or changed by statute.

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, did not survive, (Franklin v. Low, 1 Johns. 402,) and against a sheriff's representatives, for an escape occurring during his life-time, (Martin v. Bradley, 1 Caines, 124,) did not lie against such representatives. In the case of People v. Gibbs, 9 Wend. 29, decided in 1832, it was held that an action against the executors of a sheriff for the default of his deputy in returning process, notwithstanding an action in assumpsit for money had and received was by statute authorized therefor, did not lie, inasmuch as the cause of action was founded in tort. 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. 1 Rev. Laws, 311, had theretofore enlarged the scope of the statute of 4 Edw. III., and provided for actions by and against executors and administrators for property taken and converted by the testator or intestate during his life-time. 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 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 contract.’ Sec. 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 the universal classifications, 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 wrongdoer. It must also, upon well-settled principles of construction, be conceded that these terms were used by the law-makers according to their legal and well-understood signification at the time of their employment. If the language of the statute applicable to this case be collected and read according to its plain meaning and intent, the following sentence would seem to be the result: Actions by and against executors and administrators for wrongs done to the property, rights, or interests of their intestate or testator are hereby authorized; but so far as such wrongs have heretofore been remediable by actions on the case for injuries to the person of the plaintiff, or to the person of the intestate or testator of any executor or administrator, they shall not survive the death of the person to whom or by whom the wrong is done. The wrongs referred to in these sections are such only as are committed upon the ‘property, rights, or interests' of the testator or intestate, and to a cause of action for which the executors and administrators acquire a derivative title alone. The whole scope and design of the statute is to extend a remedy already accrued to the representatives of a deceased party, and provide for the survival only of an existing cause of action.

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 execpted 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 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 fraudulentrepresentation with respect to incumbrances, whereby a purchase of land at a public sale was induced, and the purchaser was compelled to pay an incumbrance which he was led to believe did not exist. The injury thus seems clearly to have been one to rights of property alone, and was saved from abatement by the first section of the statute. The language and structure of these sections would seem to repel the idea that the exemptions provided by the second section were intended to authorize the survival of all other actions for torts. In the view implied by the language used in that case, the first section would be quite unnecessary, as any provision specifying the classes of actions which did survive would be superfluous if conjoined with one enumerating all actions not surviving. Such a construction gives the first section no office to perform, and the courts have practically rejected this interpretation in numerous cases, holding that causes of action abated by death which were not named in the second section. Thus it has been held that a cause of action by a master for the seduction of his servant does not survive, (People v. Tioga Com. Pleas, 19 Wend. 73;) or for a fraudulent representation by a third person, in reliance upon which credit is given to an irresponsible person, (Zabriskie v. Smith, 13 N. Y. 322;) or for a breach of a promise to marry, (Wade v. Kalbfleisch, 58 N. Y. 286;) or for damages occasioned by the negligent killing of another. ( Whitford v. Panama R. Co. 23 N. Y. 465;) or for a penalty incurred by trustees under the general manufacturing act, (Stokes v. Stickney, 96 N. Y. 323;) and for fraud in inducing one to marry another, (Price v. Price, 75 N. Y. 244.)

The provisions in question 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 Edw. 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...