Emery v. Rochester Tel. Corp.

• Decision Date: 08 July 1936
• Citation: 3 N.E.2d 434,271 N.Y. 306
• Parties: EMERY v. ROCHESTER TELEPHONE CORPORATION.
• Court: New York Court of Appeals Court of Appeals

271 N.Y. 306

3 N.E.2d 434

EMERY

v.ROCHESTER TELEPHONE CORPORATION.

Court of Appeals of New York.

July 8, 1936.

Action by Lewis E. Emery, as limited administrator of the goods, chattels, and credits of Kathleen Emery, deceased, against the Rochester Telephone Corporation. From an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (246 App.Div. 787, 286 N.Y.S. 439), affirming an order of the Special Term (156 Misc. 562, 282 N.Y.S. 280), striking the second defense from the answer, the defendant appeals by permission. The following question was certified: ‘Do the facts alleged in the defendant's second affirmative defense constitute a defense to the complaint as matter of law?’

Orders reversed, motion to strike out the second affirmative defense denied, and question answered in the affirmative.

FINCH, O'BRIEN, and CROUCH, JJ., dissenting. Appeal from Supreme Court, Appellate Division, Fourth department.

T. Carl Nixon and Casper V. Baltensperger, both of Rochester, for appellant.

George Hoffenberg, of Rochester, for respondent.

LOUGHRAN, Judge.

Kathleen Emery, aged seven years, died of scarlet fever. Her father, Lewis E. Emery, as her administrator, brings this action under article 5 of the Decedent Estate Law (Consol.Laws, c. 13 [section 130 et seq.]), complaining that the child's death was the result of a wrongful neglect or default by the defendant telephone company of its duty as a public service corporation.

In its answer the company sets forth as a second affirmative defense that a schedule of its rates filed with the Public Service Commission limited liability for failure of service to pro rata allowances upon its monthly charges. The Appellate Division has certified to us the question whether that fact is a defense to the complaint as matter of law. We are to answer only if the complaint is itself sufficient. Small v. Sullivan, 245 N.Y. 343, 157 N.E. 261.

Plaintiff alleges that the defendant undertook to supply telephone service to his household and that tolls charged therefor had been regularly paid. ‘That on the 8th day of March, 1933, at or about two o'clock in the morning of that day Kathleen Emery, the deceased, required the immediate attention of her physician and pursuant to the instructions of the physician who had then returned to his home, the said Lewis E. Emery, did endeavor to summons him by telephone. That due to the negligence and carelessness of the defendant, its agent, servant and employee, the said Lewis E. Emery was unable to obtain a response from the central operator employed by the defendant, to handle calls coming from the residence of the said Lewis E. Emery and others living in the same locality and despite his repeated attempts lasting over a long period of time to obtain telephone service, he was unable to do so and was compelled to eventually dispatch a messenger for the physician. * * * That as a result of the delay in obtaining medical attention and care, caused by the defendant's negligence in failing to fulfill its duty to furnish prompt and efficient service, Kathleen Emery died on the 8th day of March, 1933.’

On these allegations, the defendant may be taken to have breached its contract and its statutory duty. Public Service Law (Consol. Laws, c. 48) §§ 91, 93. Cf. Transportation Corporations Law (Consol. Laws, c. 63) § 28. We assume the hypothesis of the death of the child as a proximate result to be more than mere speculation. Something else is essential, however, to warrant a recovery by the plaintiff and that additional element is wanting.

An action by an executor or administrator for negligence or wrongful act or default causing the death of a decedent 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.’ Decedent Estate Law, § 130. Although the statute ‘creates a new cause of action’ (Meekin v. Brooklyn Heights Railroad Co., 164 N.Y. 145, 153,58 N.E. 50, 53,51 L.R.A. 235, 79 Am.St.Rep. 635), and the presupposition of liability antecedent to death has no relation to the measure of recovery (Decedent Estate Law, § 132), still ‘the action can be maintained only in the cases in which it could have been brought by the deceased, if he had survived’ (Whitford v. Panama Railroad Co., 23 N.Y. 465, 469. So,Littlewood v. Mayor, etc., of City of New York, 89 N.Y. 24, 42 Am.Rep. 271. Cf. Decedent Estate Law, § 120, as added by Laws 1935, c. 795, § 3). It is in this aspect that the present complaint states no cause of action. Tiffany on Death by Wrongful Act (2d Ed.) §§ 63, 181.

Any recovery by the decedent against the defendant would have been limited to actionable damage sustained by her through its wrong. There was no direct interference with her physical person. Cf. Brown v. Buffalo & State Line R. Co., 22 N.Y. 191. All the harm done to her, if any, was relievable pain or emotional distress suffered because of the nonattendance of the physician. Nothing in the pleading concretely suggests such a result of the defendant's nonfeasance (Cf. St. Louis, Iron Mountain & Southern Ry. Co. v. Craft, 237 U.S. 648, 655, 35 S.Ct. 704, 59 L.Ed. 1160) and in any ease, as we think, a telephone company cannot be deemed to have assumed responsibility for special damages of that kind where, as here, the company did not have notice of so indefinite a risk of failure of its service. See Kerr Steamship Co. v. Radio Corporation of America, 245 N.Y. 284, 157 N.E. 140, 55 A.L.R. 1139;Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896, 62 A.L.R. 1199; 3 Sedgwick on Damages (9th Ed.) § 897a. Cf. Globe Malleable Iron & Steel Co. v. New York Cent. & H. R. R. Co., 227 N.Y. 58, 124 N.E. 109, 5 A.L.R. 1648; 1 Street on The Foundation of Legal Liability, 459.

Since there would here have been no liability to the decedent had she survived, it follows that the plaintiff has no case under the death statute.

As to the validity of the defense of limitation of liability, we express no opinion. That defense is to be deemed an adequate answer to this insufficient complaint. Baxter v. McDonnell, 155 N.Y. 83, 100,49 N.E. 667,40 L.R.A. 670.

The orders should be reversed, and the motion to strike out the second affirmative defense denied, with costs in all courts to the appellant. The question certified is answered in the affirmative.

FINCH, Judge (dissenting).

To hold that the complaint as a matter of law should be dismissed amounts to a holding that the defendant may incur no liability even though its neglect is gross and willful and the resulting damage is irreparable. In addition, the interpretation placed upon section 130 of the Decedent Estate Law would seem to do violence to the evident purpose of the statute.

Section 130, under which the present action is brought, was enacted to alleviate the harshness of the common-law rule that an action for tort does not survive the death of the injured party. Patterned after Lord Campbell's Act, the purpose of the statute was not to enrich the estate of the deceased, but to compensate the dependents of the deceased for the pecuniary loss they had sustained by reason of the death. The damages are measured not by the pain and suffering the decedent endured, but by the monetary loss in future earnings and services. The statute incorporates one limitation, that recovery can be had only against a person who ‘would have been liable to an action in favor of the decedent by reason thereof if death had not ensued.’ The evident meaning of this phrase is to prevent recovery where the decedent himself was guilty of causing his own death or where there had been no breach of duty on the part of the defendant. This it is submitted is the real basis for the limitation. ‘The condition has reference, of course, not to the loss or injury sustained by him [the...