Kathleen Emery, aged seven years, died of scarlet fever. Her father, Lewis E. Emery, as her administrator, brings this action under article 5 of the Decedent Estate Law (Cons. Laws, ch. 13), complaining that the child's death was the result of a wrongful neglect or default by the defendant telephone company of its duty as a public service corporation.
In its answer the company sets forth as a second affirmative defense that a schedule of its rates filed with the Public Service Commission limited liability for failure of service topro rata allowances upon its monthly charges. The Appellate Division has certified to us the question whether that fact is a defense to the complaint as matter of law. We are to answer only if the complaint is itself sufficient. (Small v. Sullivan,245 N.Y. 343.)
Plaintiff alleges that the defendant undertook to supply telephone service to his household and that tolls charged therefor had been regularly paid. "That on the 8th day of March, 1933, at or about two o'clock in the morning of that day Kathleen Emery, the deceased, required the immediate attention of her physician and pursuant to the instructions of the physician who had then returned to his home, the said Lewis E. Emery, did endeavor to summons him by telephone. That due to the negligence and carelessness of the defendant, its agent, servant and employee, the said Lewis E. Emery was unable to obtain a response from the central operator employed by the defendant, to handle calls coming from the residence of the said Lewis E. Emery and others living in the same locality and despite his repeated attempts lasting over a long period of time to obtain telephone service, he was unable to do so and was compelled to eventually dispatch a messenger for the physician. * * * That as a result of the delay in obtaining medical attention and care, caused by the defendant's negligence in failing to fulfill its duty to furnish prompt and efficient service, Kathleen Emery died on the 8th day of March, 1933." *Page 309
On these allegations, the defendant may be taken to have breached its contract and its statutory duty. (Public Service Law [Cons. Laws, ch. 48], §§ 91, 93. Cf. Transportation Corporations Law [Cons. Laws, ch. 63], § 28.) We assume the hypothesis of the death of the child as a proximate result to be more than mere speculation. Something else is essential, however, to warrant a recovery by the plaintiff and that additional element is wanting.
An action by an executor or administrator for negligence or wrongful act or default causing the death of a decedent may be maintained only "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." (Decedent Estate Law, § 130.) Although the statute "creates a new cause of action" (Matter of Meekin v. Brooklyn Heights Railroad Co.,164 N.Y. 145, 153), and the presupposition of liability antecedent to death has no relation to the measure of recovery (Decedent Estate Law, § 132), still "the action can be maintained only in the cases in which it could have been brought by the deceased, if he had survived." (Whitford v. Panama R.R. Co.,23 N.Y. 465, 469. So, Littlewood v. Mayor, 89 N.Y. 24. Cf. Decedent Estate Law, § 120, added by Laws of 1935, ch. 795.) It is in this aspect that the present complaint states no cause of action. (Tiffany on Death by Wrongful Act [2d ed.], §§ 63, 181.)
Any recovery by the decedent against the defendant would have been limited to actionable damage sustained by her through its wrong. There was no direct interference with her physical person. (Cf. Brown v. Buffalo State Line R.R. Co., 22 N.Y. 191.) All the harm done to her, if any, was relievable pain or emotional distress suffered because of the non-attendance of the physician. Nothing in the pleading concretely suggests such a result of the defendant's non-feasance (Cf. St. Louis, IronMountain Southern Ry. Co. v. Craft, 237 U.S. 648, 655) and in any case, as we think, a telephone *Page 310 company cannot be deemed to have assumed responsibility for special damages of that kind where, as here, the company did not have notice of so indefinite a risk of failure of its service. (See Kerr S.S. Co. v. Radio Corp., 245 N.Y. 284; Moch Co. v. Rensselaer Water Co., 247 N.Y. 160; 3 Sedgwick on Measure of Damages [9th ed.], § 897a. Cf. Globe, M.I. S. Co. v. N.Y.C. H.R.R.R. Co., 227 N.Y. 58; 1 Street on The Foundations of Legal Liability, p. 459.)
Since there would here have been no liability to the decedent had she survived, it follows that the plaintiff has no case under the death statute.
As to the validity of the defense of limitation of liability we express no opinion. That defense is to be deemed an adequate answer to this insufficient complaint. (Baxter v. McDonnell,155 N.Y. 83, 100.)
The orders should be reversed, and the motion to strike out the second affirmative defense denied, with costs in all courts to the appellant. The question certified is answered in the affirmative.