Riley v. Capital Airlines, Inc.

• Decision Date: 28 March 1960
• Citation: 24 Misc.2d 457,199 N.Y.S.2d 515
• Parties: Kathleen N. RILEY, as Administratrix of the Goods, Chattels and Credits which were of William H. Riley, Deceased, Plaintiff, v. CAPITAL AIRLINES, INC., Defendant.
• Court: New York Supreme Court

Page 515

199 N.Y.S.2d 515

24 Misc.2d 457

Kathleen N. RILEY, as Administratrix of the Goods, Chattels and Credits which were of William H. Riley Deceased, Plaintiff, v. CAPITAL AIRLINES, INC., Defendant.

Supreme Court, Monroe County.

March 28, 1960.

Whitbeck & Holloran, Rochester, Walter J. Holloran, Rochester, of counsel, for plaintiff, movant.

O'Brien, Donovan & Plante, Rochester, Charles J. O'Brien, Rochester, of counsel, for defendant, respondent.

G. ROBERT WITMER, Justice.

Plaintiff has moved to strike out as insufficient in law the first affirmative defense contained in defendant's answer which is directed to all of the causes of action alleged in the amended complaint. It is alleged in said affirmative defense that the accident out of which plaintiff's causes of action arise occurred in West Virginia, that the statutes of West Virginia limit recovery to the sum of $20,000, and that the laws of West Virginia do not permit plaintiff to sue for personal injuries and conscious pain and suffering of her decedent. In the amended complaint are separately stated and numbered four causes of action. It is alleged as common to all said causes of action that in May, 1959 plaintiff's intestate bought of defendant a round trip ticket for travel by defendant's airline from Rochester, New York to Atlanta, Georgia and return to Rochester, and that he boarded one of defendant's airplanes at Rochester for the trip; that en route to Georgia defendant's airplane, for defendant's own purposes, landed at an airport in West Virginia, turned over and burned, consuming plaintiff's intestate.

In her first numbered cause of action plaintiff alleges that defendant negligently supplied decedent with a defective safety seat belt and failed to instruct him how to use it; that as a result decedent could not extricate himself from the airplane and died in the flames. Plaintiff asks $250,000 damages for decedent's wrongful death under article 5, sections 130-133 of Decedent Estate Law of New York, and also asks $250,000 damages for his pain and suffering which, in her brief, she founds on section 119 of Decedent Estate Law of New York.

In her second numbered cause of action plaintiff alleges that defendant was negligent in that its equipment for bringing the airplane to a halt on landing was defective; that the defect occurred in New York, Pennsylvania and District of Columbia as well as in West Virgina; that defendant failed to inspect the aircraft and find the defect in said States and District, resulting in damages for which she asks judgment as in the first numbered cause of action.

In the third numbered cause of action plaintiff alleges defendant's negligence as alleged in the first and second causes of action and alleges that the West Virginia Code of 1955, section 5474, gives her a right of action against defendant for damages for wrongful death, and plaintiff asks $250,000 damages in this cause of action.

In her fourth cause of action plaintiff alleges that defendant broke its contract to carry defendant safely, resulting in injury, pain and suffering to him and loss of earnings during his life expectancy, to his damage in the sum of $250,000. Plaintiff apparently relies upon section 116 of Decedent Estate Law of New York which provides that in case of death a cause of action in contract survives to one's legal representative.

It will be noted that defendant has not moved to dismiss any of these causes of action, nor has it moved to require plaintiff to separately state and number the causes of action alleged in each of the first and second numbered causes of action. Instead, plaintiff has moved to strike defendant's said first affirmative defense to these several alleged causes of action on the ground that the defense is insufficient in law. Such motion 'searches the record' and, whether or not the defense is sufficient in law, if the amended complaint to which it is directed is insufficient, the motion must be denied. Teller v. Prospect Heights Hospital, 280 N.Y. 456, 458, 21 L.E.2d 504, 505; M. Salimoff & Co. v. Standard Oil Co. of New York, 237 App.Div. 686, 688, 262 N.Y.S. 693, 695, affirmed 262 N.Y. 220, 186 N.E. 679, 89 A.L.R. 345; New Amsterdam Casualty Co. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 236 App.Div. 494 495, 260 N.Y.S. 71, 73. Moreover, assuming each cause of action of the amended complaint to be sufficient, if the affirmative defense is sufficient as to any one of them, it must stand and the motion be denied, because the motion is not directed against the defense in respect of any particular cause of action. Cf. Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79, 84, 70 N.E.2d 401, 403; Wallace v. Perlman, 9 A.D.2d 934, 195 N.Y.S.2d 115; and Andrews v. 98 Montague, Inc., 282 App.Div. 1066, 126 N.Y.S.2d 517.

Since the first and second causes of action are admittedly founded upon the Decedent Estate Law of New York, they are insufficient in law, for the New York law has no extraterritorial effect. Debevoise v. New York L. E. & W. R. Co., 98 N.Y. 377; Baldwin v. Powell, 294 N.Y. 130, 61 N.E.2d 412; Royal Indemnity Co. v. Atchison T. & S. F. Ry. Co., 297 N.Y. 619, 75 N.E.2d 631, affirming 272 App.Div. 246, 250, 70 N.Y.S.2d 697, 700; and Watkins v. Commercial Stevedoring Co., Inc., 216 App.Div. 234, 214 N.Y.S. 634.

Even if plaintiff's first and second causes of action are claimed to be based upon the common law, they are insufficient, for at common law a cause of action for personal injury did not survive death and no cause of action for wrongful death existed in surviving relatives. Dennick v. Railroad Co., 103 U.S. 11, 21, 26 L.Ed. 439; Debevoise v. New York L. E. & W. R. Co., supra, 98 N.Y. 377; Loucks v. Standard Oil Co. of New York, 224 N.Y. 99, 103, 120 N.E. 198, 199; Greco v. S. S. Kresge Co., 277 N.Y. 26, 32, 12 N.E.2d 557, 560, 115 A.L.R. 1020; Woodford v. McDaniels, 73 W.Va. 736, 737, 81 S.E. 544, 52 L.R.A., N.S., 1215; Restatement of Conflict of Laws, § 390.

Section 390 of Restatement of Conflict of Laws provides as follows:

§ 390. Survival of Actions.

'Whether a claim for damages for a tort survives the death of the tortfeasor or of the injured person is determined by the law of the place of wrong.'

Since the accident occurred in West Virginia plaintiff's cause of action in negligence depends upon the West Virginia statutes, and she is limited to the provisions thereof. M. Salimoff & Co. v. Standard Oil Company of New York, supra, 262 N.Y. 220, 186 N.E. 679. In the Salimoff case the court stated at page 227 of 262 N.Y., at page 682 of 186 N.E.:

'The courts cannot create a foreign wrong contrary to the law of the place of the act. Slater v. Mexican National R. R. Co., 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900; American Banana Co. v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826.'

Section 5477of the West Virginia Code of 1955 expressly provides that a cause of action for injuries shall survive the injured person's death, but the action must be revived in the name of his personal representative and be governed by sections 5474 and 5475 of said code, and there shall be but one recovery. The pertinent part of the statute is as follows:

'Sec. 5477. When Action Not to Abate; Survival of Action for Personal Injury Against Wrongdoer.--Where an action is brought by a person injured for damage caused by the wrongful act, neglect or default of any person or corporation, and the person injured dies as a result thereof pending the action, the action shall not abate by reason of his death but, his death being suggested, it may be revived in the name of his personal representative, and the declaration and other pleadings shall be amended so as to conform to an action under sections five and six (§§ 5474 and 5475) of this article, and the case proceeded with as if the action had been rbought under said sections. But in such case there shall be but one recovery for the same injury. (1945, c. 2; 1949, c. 4; 1959, c. 3.)'

Section 5477(1). [8a] which specifies which causes of action survive death, omits provision for causes resulting in death. It provides in part as follows:

'Which Actions Survive; Limitations; Which Law Governs.--(a) In addition to the causes of action which survive at common law, causes of action for injuries to property, real or personal, or injuries to the person and not resulting in death, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled to recover or the death of the person liable.'

In Union Carbide Corp. v. Goett, 4 Cir., 256 F.2d 449, at page 453 the court said:

'The West Virginia Wrongful Death Act, like other statutes patterned on Lord Campbell's Act, has created a new cause of action for the benefit of certain named beneficiaries, and has not perpetuated the cause of action which the deceased had before his death. Dunsmore v. Hartman, 140 W.Va. 357, 84 S.E.2d 137; Gulf, C. & S., F. T. Co. v. McGinnis, 228 U.S. 173, 33 S.Ct. 426, 57 L.Ed. 785; Continental Casualty Co. v. The Benny Skou, 4 Cir., 200 F.2d 246, 248, certiorari denied 345 U.S. 992, 73 S.Ct. 1129, 97 L.Ed. 1400.'

Woodford v. McDaniel, supra, 73 W.Va. 736, 81 S.E. 544 holds likewise. The courts of New York are bound by the interpretation of the statute made by the courts of West Virginia. See Schwertfeger v. Scandinavian American Line, 186 App.Div. 89, 174 N.Y.S. 147, affirmed 226 N.Y. 696, 123 N.E. 888.

But it is urged that the first and second causes of action based upon the Decedent Estate Law of New York should be sustained on a new theory of conflict of laws, namely, the 'center of gravity' theory adopted by the Court of Appeals in Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99, 50 A.L.R.2d 246, with respect to contract actions. In that case the court held that the law to be applied was that of the jurisdiction which had most to do with all aspects of the problem involved. Plaintiff suggests...