Davis v. Margolis

• Decision Date: 24 January 1929
• Citation: 108 Conn. 645,144 A. 665
• Court: Connecticut Supreme Court
• Parties: DAVIS v. MARGOLIS.

144 A. 665

108 Conn. 645

DAVIS v. MARGOLIS.

Supreme Court of Errors of Connecticut.

January 24, 1929

Appeal from Superior Court, New Haven County; John Richards Booth Judge.

Action by Joseph J. Davis, administrator, against Paul Margolis, for the recovery of damages for the death of the plaintiff's decedent, alleged to have been caused by the negligence of the defendant, brought to the superior court in New Haven county, and tried to the court, Dickenson, J. Judgment for the defendant, from which the plaintiff appealed to this court, where the judgment was reversed (107 Conn. 417, 140 A 823), and the superior court directed to enter judgment for the plaintiff after hearing in damages. Upon such hearing had, Ells, J., judgment was rendered for the plaintiff for $3,500 damages, and defendant appealed. No error.

Richardson Bronson, of Waterbury, for appellant.

Herman J. Weisman and Joseph J. Davis, both of Waterbury, for appellee.

HAINES, J.

This case first came to this court upon the plaintiff's appeal from a judgment for the defendant, and that judgment was reversed, the superior court being directed " to render judgment for the plaintiff, after hearing had upon the single issue of damages, for such damages as the plaintiff has established by legal proof." Davis, Adm'r, v Margolis, 107 Conn. 417, 425, 140 A. 823, 826. Upon the second hearing the defendant objected to the evidence offered to show damages on the ground that the negligence causing the death of the plaintiff's decedent was that of the son and the father, who were heirs and would be statutory distributees of the decedent's estate. The court overruled this objection and admitted the evidence, and this appeal questions the correctness of that decision.

The ruling of the trial court rests upon two of our statutes (section 6137 and section 5064), which read as follows:

" Sec. 6137. Actions for Injuries Resulting in Death; Damages. In all actions surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, or whether caused by the negligence of the defendant or by his willful, malicious or felonious act, such executor or administrator may recover from the party legally at fault for such injuries just damages not exceeding ten thousand dollars, provided no action shall be brought under this section but within one year from the neglect complained of or from the commission of such willful, malicious or felonious act, and provided further, the foregoing shall not affect causes of action arising before August 1, 1913. All damages recovered under this section shall be distributed as directed in Section 5064."

Sec. 5064. Damages for Causing Death, How Distributed. All damages recovered under the provisions of Section 6137, after payment of the costs and expenses of suit and all doctors' and funeral bills and the expenses of administration, shall be distributed in accordance with the law concerning the distribution of intestate personal estate."

The appellant seems to contend that section 6137 creates a new and independent cause of action for the sole benefit of the heirs of the decedent, who take a vested interest under it, in their own right, and that it is of the same legal effect as the statute in New York. On the contrary, our statute is one of survival. It is conceded that an action could have been maintained by the plaintiff's decedent if death had not resulted. The fact that death did result does not create an independent cause of action. There is but one liability in either case, and that is for all the proximate results of the tort, whatever they may be, and the statute passes this right, which the decedent would have had during life, to her personal representative after the death, which was itself one of the results of the tort. Murphy v. New York, & N. R. Co., 30 Conn. 184, 189; Goodsell v. Hartford & New Haven R. R. Co., 33 Conn. 51, 55, 56; Kling v. Torello, 87 Conn. 301, 305, 87 A. 987, 46 L.R.A. (N. S.) 930; Bunnell v. Waterbury Hospital, 103 Conn. 520, 530, 131 A. 501. The New York statute, on the contrary, gives a right of action after the death only in cases where the decedent " has left him or her surviving, a husband, wife or next of kin," against the tort-feasor who " would have been liable to an action in favor of the decedent by reason thereof if death had not ensued." Decedent Estate Law (Consol. Laws of New York, c. 13, book 13, § 130) and following Laws of New York 1920, c. 919, art. 5. Under this statute the administrator is in effect only a trustee or agent for those beneficially interested and for whose benefit alone the statute was passed.

In Mezzi v. Taylor, 99 Conn. 1, 7, 120 A. 871, the defendant claimed that the recovery for a death injury was purely statutory, and that, in an action under this statute, only such damages as resulted from the death itself could be recovered. We held this to be a misinterpretation of the statute, calling attention to the decision in Kling v. Torello, 87 Conn. 301, 87 A. 987, 46 L.R.A. (N. S.) 930, and adding, that " the right of action arising from any injury to a deceased person by reason of sufferings or disability during life is continued in his personal representative after death with an enlarged right of recovery for ensuing death, and also that instantaneous death may give rise to a right of action confined as to recovery to the event of death." Mezzi v. Taylor, 99 Conn. 1, 7-8, 120 A. 871, 873.

Clearly the decedent would have had a right of action for the negligence alleged, if she had suffered...