Riley v. Capital Airlines, Inc.

• Decision Date: 21 June 1963
• Citation: 42 Misc.2d 194,247 N.Y.S.2d 427
• 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 427

247 N.Y.S.2d 427

42 Misc.2d 194

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.

June 21, 1963.

Whitbeck & Holloran, Rochester, for plaintiff.

O'Brien, Donovan & Plante, Rochester, for defendant.

LAMBIASE, Justice.

Plaintiff's deceased, a resident of the Town of Irondequoit, New York, on the 12th day of May, 1959 was a commercial passenger on an airplane owned and operated by defendant, Capital Airlines. As such passenger he had a ticket to convey him from Rochester, New York to Atlanta, Georgia on Flight Number 983 on that day and to return from Atlanta to Rochester, New York on May 16, 1959. En route from Rochester to Atlanta the plane, on that day and at or about 3:29 P.M., put down at Kanawha Airport at Charleston, West Virginia, in the course of which landing the airplane crashed, burned, and deceased was killed.

This action, as set forth in plaintiff's second amended complaint, has been brought by the administratrix above named pursuant to West Virginia Code of 1955, Section 5474, entitled 'Action for Wrongful Death' which, at all times herein mentioned, read as follows:

'Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter. No action, however, shall be maintained by the personal representative of one who, not an infant, after injury, has compromised for such injury and accepted satisfaction therefor previous to his death. Any right of action which may hereafter accrue by reason of such injury done to the person of another shall survive the death of the wrongdoer, and may be enforced against the executor or administrator, either by reviving against such personal representative a suit which may have been brought against the wrongdoer himself in his lifetime, or by bringing an original suit against his personal representative after his death, whether or not the death of the wrongdoer occurred before or after the death of the injured party. (1863 c. 98, § 1; Code 1868, c. 103, § 5; Code 1923, c. 103, § 5; 1931, c. 20.)'

More particularly, it is alleged in said second amended complaint (para. 12th) that:

'* * * while the said aircraft was landing on a runway known as Runway 32 in the State of West Virginia, and while the aircraft was rolling out the landing, and while said William H. Riley was a passenger thereon, the said aircraft did leave its proper course of travel upon paved Runway 32 and did commence to move sideways in a right direction and did proceed in this right sideways direction through a sodded area in a northwest direction from the intersection of Runways 14/32 and 5/32 at said airport to the brink of a thirty-two (32) degree slope which was rimmed by a two foot embankment; the right landing gear of the said aircraft struck the said embankment turning the aircraft backward over the slope while the momentum carried the aircraft over the brink and down the thirty-two (32) degree slope tail first and the said aircraft came to rest at the foot of the slope which was approximately ninety-five (95) feet below airport elevation; length of slope from brink to bottom was approximately two hundred fifty (250) feet.'

It is further alleged in said second amended complaint (para. 14th) that:

'The said defendant, its agents, servants and employees were negligent in that they failed to properly operate and control the said aircraft during the landing in that they failed to exercise the proper safety precautions and care to avoid the accident; in that the crew failed to handle themselves in a proper manner and to heed the orders of the captain which would have avoided the crash during the dangerous emergency situation; in that defendant supplied said William H. Riley with an unsafe safety belt buckle; in that defendant failed to instruct said William H. Riley in the release mechanism of said safety belt buckle; in that defendant's aircraft and equipment thereof were defective and not in proper working order; in that defendant failed to properly inspect the said aircraft; and in that defendant, its agents, servants and employees failed to take proper care and safety precautions to avoid harming the said William H. Riley.'

Also alleged therein (para. 17th) is the following:

'That the said William H. Riley did not compromise for such injury, nor did he accept satisfaction thereof previous to his death.'

The answer to the second amended complaint admits that the accident out of which the cause of action alleged arose occurred in the State of West Virginia and affirmatively alleges that § 5474 of the West Virginia Code of 1955 was in effect at the time setting it forth verbatim, and alleges further that also in existence was § 5475 of said Code entitled 'Party Plaintiff in Such Action; Damages; Distribution; Limitation.' reading as follows:

'Every such action shall be brought by and in the name of the personal representative of such deceased person, and the amount recovered in every such action shall be distributed to the parties and in the proportion provided by law in relation to the distribution of personal estate, left by persons dying intestate. In every such action the jury may give such damages as they shall deem fair and just, not exceeding ten thousand dollars: Provided, however, if the plaintiff in such 'action shall prove by a preponderance of the evidence financial or pecuniary loss sustained by a distributee or distributees of such deceased person in an amount exceeding the sum of ten thousand dollars the jury may give such damages as shall equal such financial or pecuniary loss, not exceeding twenty thousand dollars as the total of all damages recoverable in such action, and the amount so recovered shall not be subject to any debts or liabilities of the deceased. Every such action shall be commenced within two years after the death of such deceased person. (1863, c. 98, § 2; Code 1868, c. 103, § 6; 1882, c. 105, § 6; Code 1923, c. 103, § 6; 1955, c. 1.)'

Also pleaded therein (para. 6th) is the following:

'That pursuant to the foregoing provisions of the West Virginia Law and Statutes, if plaintiff is entitled to recover in this action, the amount of such recovery is limited as provided in said laws and statutes of West Virginia.'

The amended complaint served herein alleged two causes of action in favor of plaintiff and against the defendant pursuant to Article 5 of the Decedent Estate Law of the State of New York as follows: It alleged a first cause of action 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. It also asked damages for conscious pain and suffering of deceased endured by him before his death. In the second numbered cause of action plaintiff alleged 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 the District of Columbia as well as in West Virginia; that defendant failed to inspect the aircraft and to find the defect in said states and district. It, too, asked damages for conscious pain and suffering of deceased endured by him before his death. It also contained a third numbered cause of action in which plaintiff alleged defendant's negligence as set forth in the first and second causes of action and alleged the West Virginia Code of 1955, Section 5474, as the basis for her right of action against defendant for damages for wrongful death of deceased. In her fourth cause of action plaintiff alleged that defendant broke its contract to carry plaintiff's decedent safely with resultant damage to decedent, apparently relying upon section 116 of Article 4 of the Decedent Estate Law of the State of New York which provides that in case of death a cause of action in contract survives to one's legal representative.

By a motion made to dismiss the affirmative defense set forth in paragraphs, fourth, fifth, sixth and seventh in the answer to the amended complaint, and in said answer made applicable to all of the causes of action,--viz., that of the limitation of the amount of damages recoverable contained in the West Virginia statute, and that alleging that at the time of the accident alleged in the complaint the law of the State of West Virginia did not permit an action for damages by the executor or administrator of the deceased person for personal injuries and conscious pain and suffering of said deceased person before death,--Special Term held the first and second causes of action as pleaded to be legally insufficient; it denied the motion to dismiss and held sufficient the affirmative defense based upon section 5475 of the West Virginia Code providing for a limitation on the amount of damages recoverable; and decided that the fourth cause of action was legally insufficient.

Upon appeal to the Appellate Division, 13 A.D.2d 889, 215 N.Y.S.2d 295, the Appellate Division, Fourth Department, modified the Special Term to the extent of striking the affirmative defense to the third cause of action, citing Kilberg v. Northeast Airlines, 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526. In its memorandum the Appellate Division states at page 890 of 13 A.D.2d, at page 296 of 215 N.Y.S.2d:

'In our...