Travelers' Ins. Co. v. Louis Padula Co.

• Decision Date: 12 November 1918
• Citation: 121 N.E. 348,224 N.Y. 397
• Parties: TRAVELERS' INS. CO. v. LOUIS PADULA CO., Inc.
• Court: New York Court of Appeals Court of Appeals

224 N.Y. 397

121 N.E. 348

TRAVELERS' INS. CO.

v.LOUIS PADULA CO., Inc.

Court of Appeals of New York.

Nov. 12, 1918.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the Travelers' Insurance Company against the Louis Padula Company, Incorporated. From an order of the Appellate Division (170 N. Y. Supp. 869) reversing an interlocutory judgment, which overruled a demurrer to the complaint, sustaining the demurrer and dismissing the complaint, plaintiff appeals. Reversed, and interlocutory judgment reinstated and affirmed.

Chase and Hogan, JJ., dissenting.

E. C. Sherwood, of New York City, for appellant.

Samuel H. Sternberg, of New York City, for respondent.

COLLIN, J.

The action is based upon the provisions of section 29 of the Workmen's Compensation Law (Consol. Laws, c. 67, as amended by Laws 1916, c. 622). The section, prior to amendments (Laws of 1917, c. 705, § 8) inapplicable here, was:

‘ Subrogation to Remedies of Employés.-If an employé entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured employé, or in case of death, his dependents, shall, before any suit, or claim under this chapter, elect whether to take compensation under this chapter or to pursue his remedy against such other. Such election shall be evidence in such manner as the commission may by rule or regulation prescribe. If he elect to take compensation under this chapter, the cause of action against such other shall be assigned to the state for the benefit of the state insurance fund, if compensation be payable therefrom, and otherwise to the person, association, corporation, or insurance carrier liable for the payment of such compensation, and if he elect to proceed against such other, the state insurance fund, person, association, corporation, or insurance carrier, as the case may be, shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided or estimated by this chapter for such case. Such a cause of action assigned to the state may be prosecuted or compromised by the commission. A compromise of any such cause of action by the employé or his dependents at an amount less than the compensation provided for by this chapter shall be made only with the written approval of the commission, if the deficiency of compensation would be payable from the state insurance fund, and otherwise with the written approval of the person, association, corporation, or insurance carrier liable to pay the same. Wherever an employé is killed by the negligence or wrong of another not in the same employ and the dependents of such employé entitled to compensation under this chapter are minors, such election to take compensation and the assignment of the cause of action against such other and such notice of election to pursue a remedy against such other shall be made by such minor, or shall be made on behalf of such minor by a parent of such minor, or by his or her duly appointed guardian, as the commission may determine by rule in each case.’

The complaint alleged, in effect: In May, 1915, the plaintiff was, under the Workmen's Compensation Law, the insurance carrier of the Brand & Silverstein Iron Works of which Adolph Littman was an employé. Littman received injuries, solely through the negligence of the defendant, Louis Padula Company, Incorporated, causing his death, under conditions making the law applicable, and the employer and the plaintiff, the insurance carrier, liable. He left surviving as dependents a widow and two minor children, who elected to take compensation under the law, and not to pursue their remedy against the defendant, which was not in the employ of the iron works. In June, 1915, the state Industrial Commission, in due course of proceeding, awarded compensation to the dependents, for the payment of which the plaintiff was and is liable. The dependents duly assigned to the plaintiff, with the approval of the commission, the cause of action against the defendant for negligently causing the death of Littman. Judgment for the sum of $25,000 is demanded.

The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The Special Term overruled the demurrer. The Appellate Division reversed the decision of the Special Term, sustained the demurrer, and dismissed the complaint on the ground that the action must, under section 1902 of the Code of Civil Procedure, be prosecuted by an executor or administrator of Littman. Section 1902 is:

‘ Action for Causing Death by Negligence, etc.-The executor or administrator duly appointed in this state, or in any other state, territory or district of the United States, or in any foreign country, of a decedent, who has left him or her surviving a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent's death was caused, 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. Such an action must be commenced within two years after the decedent's death. When the husband, wife or next of kin, do not participate in the estate of decedent, under a will appointing an executor, other than such husband, wife or next of kin, who refuses to bring such action, then such husband, wife or next of kin shall be entitled to have an administrator appointed for the purpose of prosecuting such action for their benefit.’

[1] A civil liability and the right to recover damages for a wrongful act or neglect causing death are created solely by statute. At common law no civil action would lie for causing the death of a human being. Legislative enactment is the exclusive source and boundary of the liability and the remedy. It may create the cause of action, define the period of its existence, and the party by whom and the method in which it shall be enforced, and prescribe the measure of damages and the beneficiaries.

[2] The meaning and intent of section 29 is manifestly not clear and certain through its language. We are therefore bound to search for the legislative intent in such facts and through such rules as may, in connection with the language, legitimately reveal it. If it, as determined, is within the scope or capability of the language, it must be within the statute, however obscurely, imperfectly, or inadequately it is expressed. To effect the intent the language may be freely dealt with. Words may be interpolated or shifted in position or enlarged or restrained in their meaning and operation. The expressed legislative intention is the statute. The courts are bound to enforce enacted legislative intent. Archer v. Equitable Life Assurance Society of the United States, 218 N. Y. 18,112 N. W. 433;Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819.

[3][4][5] The language of the section reveals and expresses the legislative intention to give to the dependents under the law of the employé within the law, killed by the negligence or wrong of another not in the same employ, a cause of action for the death. It...