Sullivan v. Associated Billposters and Distributors

• Decision Date: 02 March 1925
• Docket Number: No. 106.,106.
• Citation: 42 ALR 503,6 F.2d 1000
• Parties: SULLIVAN v. ASSOCIATED BILLPOSTERS AND DISTRIBUTORS OF THE UNITED STATES AND CANADA et al.
• Court: U.S. Court of Appeals — Second Circuit

42 ALR 503, 6 F.2d 1000 (1925)

SULLIVAN v. ASSOCIATED BILLPOSTERS AND DISTRIBUTORS OF THE UNITED STATES AND CANADA et al.

No. 106.

Circuit Court of Appeals, Second Circuit.

March 2, 1925.

COPYRIGHT MATERIAL OMITTED

Abraham Benedict and Gustavus A. Rogers, both of New York City, for plaintiff in error.

Geller, Rolston & Blanc, of New York City (George S. Mittendorf and Clinton C. Swan, both of New York City, of counsel), for defendants in error.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS, Circuit Judge (after stating the facts as above).

The question which is now presented to this court is simply whether it was error for the court below to deny the plaintiff's motion to continue the action against the executors of Samuel Pratt, deceased, and to substitute them as defendants in his place and stead. As the answer to that question depends upon the character of the action in which substitution of the executors is sought, the nature of the action which it is sought to continue, and in which this substitution of parties is sought, is important, and so has been set forth in considerable fullness in the statement preliminary to this opinion.

But, before proceeding to the consideration of the real question presented, it is necessary to dispose of a preliminary question. Unless the order made in the court below and brought here by writ of error is a "final" order, we have no authority at this time to determine the question of its validity. But we have no doubt that the order which denied the right to revive the action against the executors of a deceased defendant is a "final" decision and therefore reviewable by this court. A decision is "final," in the sense in which an appeal from it is permitted, when it decides the whole merits of the cause as between the parties to the appeal, making it unnecessary as between them to bring the case a second time before the court for its decision. Mackaye v. Mallory, 79 F. 1, 24 C. C. A. 420; Butler v. Fayerweather, 91 F. 458, 33 C. C. A. 625; Odell v. H. Batterman Co., 223 F. 292, 295, 138 C. C. A. 534; Empire Trust Co. v. Brooks, 232 F. 641, 146 C. C. A. 567; Great Lakes Towing Co. v. St. Joseph Chicago S. S. Co., 253 F. 635, 165 C. C. A. 261; Gas & Electric Securities Co. v. Manhattan & Queens Traction Corporation (C. C. A.) 266 F. 625, 630; Adler v. Seaman (C. C. A.) 266 F. 828, 839.

It appears that among the defendants in the pending action are Kirwin H. Fulton, Annie Link, and the Kings County Trust Company as the executors of the estate of Barney Link, and Edwilda M. O'Melia and Harry F. O'Melia, administrators of the estate of James F. O'Melia. Barney Link, according to the allegations of the bill of complaint, was a member of the board of directors during the time involved in the suit, as was also James F. O'Melia. Link died on March 2, 1917. It is alleged that the acts complained of relate to acts performed by Link in his lifetime prior to the date of his death in conjunction with the other defendants. It is not alleged when O'Melia died. But no question seems to have been raised as to the right to join the executors and administrators of Link and O'Melia as defendants in the original bill. The question now presented comes here because of the death of the defendant Pratt, who died on February 22, 1922, nearly two years after the institution of the suit. The plaintiff moved for an order reviving and continuing the action against the executors of Pratt. It was this motion which the court below denied; and it is that order which was brought into this court, by the writ of error.

The principles of natural justice would seem to require that executors and administrators of a deceased person should have the same right as their decedent himself had to maintain a suit for the recovery of damages which their decedent's estate has suffered by reason of the tortious acts of any person. To hold otherwise is to prejudice the rights of heirs and creditors, and to allow the wrongdoer to escape the consequences of his wrongful act. See Hooper v. Gorham, 45 Me. 209, 213. And for like reasons it would seem that the representatives of a deceased person should be liable to answer out of their decedent's estate for the wrongful acts committed by him in his lifetime, whereby another had suffered in his estate, and by which the estate of the wrongdoer had increased the amount of his own estate. Whether or not existing law permits this, and whether upon the facts alleged it appears that the plaintiff's estate was diminished or the defendant's estate increased by his wrongful acts, must now be considered.

The courts of equity recognized the injustice of the abatement of a suit by the death of a party. In Clarke v. Mathewson, 12 Pet. 164, 171, 9 L. Ed. 1041, Judge Story called attention to the difference between a suit in equity and an action at law because of the death of a party; and as a general rule the maxim "actio personalis moritur cum persona" has not applied to cases falling within the jurisdiction of equity, and equitable remedies exist to the same extent against executors and administrators as they did against the decedent. Reed v. Copeland, 50 Conn. 472, 47 Am. Rep. 663; Wynn v. Tallapoosa County Bank, 168 Ala. 469, 53 So. 228; Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909. This explains why it is that in suits for infringement of patents, trademarks and copyrights, where injunctions are sought and claims are made, the suits survive in favor of and against personal representatives. Illinois Central R. Co. v. Turrill, 110 U. S. 301, 4 S. Ct. 5, 28 L. Ed. 154; Griswold v. Hilton (C. C.) 87 F. 256; Oakley v. Dalton, 35 Ch. D. 700. These suits are brought in equity courts, and are governed by principles not applicable to actions at law.

Sir Frederick Pollock, in his Work on Torts (11th Ed., p. 61), discussing the effect produced on liability for a death of either the person wronged or the wrongdoer, declares it to be one of "the least rational parts" of the law; and he also declares that "when once the notion of vengeance has been put aside, and that of compensation substituted, the rule `actio personalis moritur cum persona, seems to be without plausible ground. First, as to the liability, it is impossible to see why a wrongdoer's estate should ever be exempted from making satisfaction for his wrongs. It is better that the residuary legatee should be to some extent cut short than that the person wronged should be deprived of redress." The same writer, on page 71, after stating the rule that the right of action survives against the executor in cases where the decedent has added to his own estate property or the value or proceeds of property belonging to another, states that the rule is "limited to specific acquisitions or their value. It does not include the recovery of damages, as such, for a wrong, though the wrong may have increased the wrongdoer's estate in the sense of being useful to him or saving him expense."

In Schreiber v. Sharpless, 110 U. S. 76, 3 S. Ct. 423, 28 L. Ed. 65, a suit was brought not in equity to obtain an injunction and damages because of an infringement of a copyright, but to recover penalties and forfeitures under the Copyright Act (section 4965, Rev. St.), and it was held that the suit abated by the death of the defendant and the cause of action did not survive — that at common law qui tam actions on penal statutes of the United States do not survive. The court said: "At common law actions on penal statutes do not survive, * * * and there is no act of Congress which establishes any other rule in respect to actions on the penal statutes of the United States. * * * As the nature of penalties and forfeitures imposed by acts of Congress cannot be changed by state laws, it follows that the state statutes allowing suits on state penal statutes to be prosecuted after the death of the offender can have no effect on suits in the courts of the United States for the recovery of penalties imposed by an act of Congress."

That this decision is inapplicable to the case now before the court will appear as we proceed. This brings us to consider the rule at common law. It is undoubted that the death of a person in whose favor or against whom a cause of action has accrued may operate to abate the right of action itself, so that no action can be afterward commenced by or against his personal representative, nor an action brought by or against him before his death revived and continued by or against his personal representative. The question now before us is whether, under the circumstances of this case, the cause of action survived.

But it is to be understood that the question to be considered is restricted to the survivability of the action simply as respects the personal representatives of Samuel Pratt, who died after the action was commenced. The order brought here by writ of error applied simply to those representatives, and could apply only as to them, inasmuch as section 956 of the Revised Statutes (Comp. St. § 1593) provides as follows: "If there are two or more plaintiffs or defendants, in a suit where the cause of action survives to the surviving plaintiff or against the surviving defendant, and one or more of them dies, the writ or action shall not be thereby abated; but, such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff against the surviving defendant." And see Patton v. Brady, 184 U. S. 608, 22 S. Ct. 493, 46 L. Ed. 713; In re Connaway, 178 U. S. 435, 20 S. Ct. 951, 44 L. Ed. 1134; Estes v. Worthington (C. C.) 30 F. 465.

The ancient maxim of the common law was "actio personalis moritur cum persona." The harshness of the rule that personal actions ex delicto died with the person was early seen, and it was modified to some extent by the Statute of 4 Edward III, called the "Statute de Bonis Asportatis in Vita Testatoris," so as to allow executors to maintain actions of trespass...