ORMSBY ET AL., EXECUTORS,
v.
CHASE
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A Pennsylvania resident was injured by a negligent elevator accident in New York but did not sue before the defendant's death; when she later sued his executors in federal court relying on a Pennsylvania statute allowing executors to be sued, the Supreme Court held that the law of the place where the tort occurred (New York) determines whether a negligence claim survives the wrongdoer's death, and because New York common law abated such claims upon death, the plaintiff had no enforceable claim regardless of Pennsylvania's survival statute.
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Mr.'Justice Butler delivered the opinion of the Court.
Frank G. Ormsby was a resident and citizen of Pennsylvania until his death June 14, 1926. He owned a building in New York City in which he maintained and operated a passenger elevator. Respondent was one of his tenants, and October 17, 1925, the elevator, in which she was being carried, fell, seriously injuring her. She did not sueNtim, but, after his death, brought this suit in tKe-.-federal court for the eastern district of Pennsylvania against his executors to recover damages on account of such injuries, alleging them to have been caused by the negligence of deceased. The affidavit of defense al-, leged that plaintiff’s cause of action abated with the testator’s death. The district court so held.3 F.Supp. 680. The Circuit Court of Appeals reversed. 65 F. (2d) 521.
Plaintiff’s statement of claim did not allege that -her right of action survived' the death of the deceased. It was not made to survive by any statute of New York, and under the common law there in force did abate with his death. Gorlitzer v. Wolffberg, 208 N.Y. 475; 102 N.E.
528. Bernstein v. Queens County Jockey Club, 222 App. Div. 191; 225 N.Y.S. 449.1 She relies upon a Pennsylvania statute which declares that executors shall be liable to be sued in any action which might have Ijeen maintained against the deceased if he had lived. Laws 1921, No. 29, § 35 (b), p.
58. But the law of the place of the wrong determines whether the claim for damages survives the death of the wrongdoer. Orr v. Ahern, 107 Conn. 174; 139 Atl.
691. Sumner v. Brown, 312 Pa. 124; 167 Atl.
315. Davis v. Mills, 194 U.S. 451, 454.2 Assuming Ormsby’s negligence as alleged, the New York law, upon the happening of the accident, gave plaintiff a right of action. But the same law limited the right and made it to end upon the death of the tortfeasor. As actions for personal injuries are transitory, she might have sued him in Pennsylvania. Tennessee Coal, I. & R. Co. v. George, 233 U.S.
354. But when she sued she had no claim to enforce. Hyde v. Wabash, St. L. & P. Ry. Co., 61 Ia. 441, 443; 16 N.W.
351. She could derive no substantive right from the Pennsylvania survival statute. See Sumner v. Brown, supra. As there had been no suit, no question of revivor is presented. Martin’s Administrator v. Baltimore & Ohio R. Co., 151 U.S. 673, 691, et seq. Baltimore & Ohio R. Co. v. Joy; 173 U.S.
226. It results, therefore, that the judgment of the Circuit Court of Appeals cannot be sustained.
Reversed.
Mr. Justice Roberts took no part in the consideration or decision of this case.
And see Davis v. New York & N. E. R. Co., 143 Mass. 301, 304; 9 N.E. 815. Needham v. Grand Trunk Ry. Co., 38 Vt. 294,. 308-311. Hyde v. Wabash, St. L. & P. Ry. Co., 61 Ia. 441; 16 N.W. 351. Smith v. Condry, 1 How. 28, 33. Slater v. Mexican National R. Co., 194 U.S. 120, 126. Cuba R. Co. v. Crosby, 222 U.S. 473, 478. Tennessee Coal, I. & R. Co. v. George, 233 U.S. 354, 360. Western Union v. Brown, 234 U.S. 542, 546. Spokane & I. E. R. Co. v. Whitley, 237 U.S. 487, 494-495.
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Moore v. Chesapeake & Ohio Ry. Co., 291 U.S. 205 (U.S. 1934)…he Federal Safety Appliance Acts, the liability of respondent was determined by the laws of Kentucky. Slater v. Mexican National R. Co., 194 U.S. 120, 126; Cuba R. Co. v. Crosby, 222 U.S. 473, 478; Young v. Masci, 289 U.S. 253, 258; Ormsby v. Chase, 290 U.S. 387. 'The statute of Kentucky, in prescribing the liability of common- carriers for negligence causing injuries to employees while engaged in intrastate commerce, reproduced in substance, and with almost literal exactness, the corresponding provisions o…
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Luna Dale Roscoe v. Roscoe, 379 F.2d 94 (D.C. Cir. 1967)…ould have instituted action against her husband in North Carolina. Since her claim was transitory, she was entitled unless barred by our law to pursue vindication of her right in the courts of the District of Columbia. Ormsby v. Chase, 290 U.S. 387, 54 S.Ct. 211, 78 L.Ed. 378, 92 A.L.R. 1499 (1933); Baltimore & Ohio Railroad Co. v. Joy, 173 U.S. 226, 231, 19 S.Ct. 387, 43 L.Ed. 677 (1899). Moreover, North Carolina has provided that except for certain categories specifically enumerated in G.S. section 28-17…
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Gray v. Blight, 112 F.2d 696 (10th Cir. 1940)…r damages to his automobile. Three-fourths of the costs will be assessed against the plaintiffs and one-fourth against the ad-ministratrix. Hereinafter referred to as the plaintiffs. Hereinafter referred to as the administratrix. Ormsby v. Chase, 290 U.S. 387, 388, 54 S.Ct. 211, 78 L.Ed. 378, 92 A.L.R. 1499; Curtis v. Campbell, 3 Cir., 76 F. 2d 84, 85; Boothe v. Teche Lines, Inc., 165 Miss. 343, 143 So. 418, 420; Wise v. Hollowell, 205 N.C. 286, 171 S.E. 82, 83; Baise v. Warren, 158 Va. 505, 164 S.E. 655…1 / 2
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Slater v. Mexican Nat'l R.R. Co., 194 U.S. 120 (U.S. 1904)
- Davis v. Mills, 194 U.S. 451 (U.S. 1904)
- Martin's Administrator v. Baltimore & Ohio R.R. Co., 151 U.S. 673 (U.S. 1894)
- Cuba R.R. Co. v. Crosby, 222 U.S. 473 (U.S. 1912)
- Tennessee Coal v. George, 233 U.S. 354 (U.S. 1914)
- W. Union Tel. Co. v. Brown, 234 U.S. 542 (U.S. 1914)
- Walsh v. The United States, 1 How. 28 (U.S. 1843)
- Spokane & Inland Empire R.R. Co. v. Whitley, 237 U.S. 487 (U.S. 1915)
- Baltimore & Ohio R.R. Co. v. JOY, 173 U.S. 226 (U.S. 1899)
- Henshaw v. Miller, 17 How. 212 (U.S. 1854)