Logan v. Whitley ( 1908 )

Gaynor, J. (concurring):

Causes of action have to e consistent with each other to be united in the "same complaint (Code Civ. Proc. § 484). The test of consistency is whether a'recovery may be had on each. • If, on the contrary, one cause, if recovered on, defeats the other or others, or, if valid, shows the other or others to be void, they are inconsistent (Bliss Code Pl. § 122). The two causes here alleged are obviously inconsistent; they cannot both be recovered on; recovery on one would defeat the other. But although the pleader has expressly pleaded a first and a second cause of action, the fact is there is but one on the facts alleged, and only one should have been in form pleaded. The cause is breach of a contract to pay $10,000. Whichever way the money came due'on the contract, viz., whether by the wife surviving the husband, or by the act of the husband in killing the wife and thereby preventing the money coming due by her surviving him, it remains the fact that there is only one cause of action, viz., for breach of the contract obligation to pay the money after it came due. The plaintiff could have alleged in one cause of action (1) that the husband willfully and wrongfully killed the wife and himself and (2) that she survived him; and that by reason of the premises the $10,000 secured by the said contract came due and payable. Such a complaint would state a good cause of action, and on the trial a recovery could be had on either theory. Hor would the allegation of killing be struck out on motion for irrelevancy. The answer to such a motion would be that the plaintiff might not be able to prove survivorship and therefore should not be prevented from recovering on proof of the other allegation, which would suffice without survivorship. And vice versa.

The objection that if the wife did not survive the husband, the cause of action was never in her, and therefore cannot have passed to her administrator, is only specious. It often happens that a cause of action accrues to an executor or administrator on a contract owned by his decedent which had not accrued to the decedent. The contract passes to the executor or administrator, and the cause of action on it may only accrue by the fact of the decedent’s death, or afterwards. ■

Interlocutory judgment affirmed, with costs.