188 F. 6 | 3rd Cir. | 1911
In the court below Mrs. Bertha M. Evans, administratrix of Daniel D. Evans, recovered a verdict against the Baltimore & Ohio Railroad Company for damages caused' by the latter’s negligence, whereby the decedent was killed. On entry of judgment thereon, the railroad sued out this writ.
The decedent, while working for the defendant, on December 22, 1906, was killed in the state of West Virginia. By virtue of a statute of that state (Code of 1906, c. 103, § 6), the right of action herein sued upon was created. That statute provided:
“Every such action shall be brought by and in the name of the personal representative of such deceased person; aud the amount recovered in every such action shall be distributed to the parties and in the proportion provided by law in relation to the distribution of personal estate left by persons dying intestate.”
Evans left to survive him a widow and three minor children. His domicile was in Fayette county, Pa., and on January 7, 1907, letters of
“That [M. H. 7Aim], the said personal representative of D. I). Evans, deceased, by virtue of his appointment, was invested with full power to prosecute, compromise, release, or refuse to prosecute the alleged claim against the Baltimore & Ohio Railroad Company on behalf of the widow and children of said decedent upon such terms or as he might deem best', and his act in compromising or releasing or refusing to prosecute the alleged claim against the Baltimore & Ohio Railroad Company on account of the dentil of the said decedent is binding upon the beneficiaries of snch claim until by appropriate judicial proceedings and upon suilicient ground such release, compromise, or settlement of said claim is annulled and made void ”
and its fifth point, asking for binding instructions in its favor. Subsequently the -court denied defendant’s motion for judgment non obstante veredicto, and its action in so doing is assigned for error.
After argument and due consideration, we think the court committed no error. As we have seen, the statute of West Virginia which created the right of action did not confer its benefits upon Daniel Evans’ estate, but on his widow and minor children. The domicile of Evans being in Pennsylvania, and letters of administration being duly granted therein to the plaintiff, a right of action for the enforcement of the liability created by the West Virginia statute was vested in the Pennsylvania administratrix. Dennick v. Railroad Company, 103 U. S. 11, 26 L. Ed. 439. Rut toward a suit brought by an administrator to enforce this statutory right it will he observed such administrator has a different status from that of an administrator who is suing as representative of an estate. In the former case he is a mere formal party, and the real parties in interest arc the widow and minor children. Thus, under a statute of New Jersey substantially the same as that of West Virginia it has been held by the courts of the former state—Pisano v. Shanley, 66 N. J. Law, 1, 48 Atl. 618—that the statutory suit is brought—
“for the benefit of the widow and next of kin, and is a suit wholly for 1 lie benefit of those persons. Cooper v. Shore Electric Company, 63 N. J. Law, 558, 44 Atl 633. The administrator upon the record, whoever he is, is a formal party for the maintenance of the action.”
This conclusion renders unnecessary a discussion in this opinion of the question involved in an equity case (infra) wherein the court below set aside such release, and which we decide simultaneously with the present case.
The judgment of the court below in the present action is affirmed.