248 Pa. 503 | Pa. | 1915
Lead Opinion
Opinion by
On December 13, 1909, the plaintiff’s ten year old son was killed with his father, in a collision between a wagon driven by the latter and a train of the defendant company. In the suit to recover for the death of the
The question which we have before us never seems to have been passed upon in Pennsylvania under circumstances precisely like those at bar; although, in a number of cases involving the negligent killing of children, where both parents were alive and joined in the action, and the contributory negligence of one of them was shown, we decided that such negligence was attributable to the other parent, and that it formed a complete bar to recovery as against both of them. In Johnson v. Reading City Passenger Ry., 160 Pa. 647, 652, the suit was by the father and mother, and it was held that the contributory negligence of the mother acted as a bar. In Gress v. Philadelphia & Reading Ry. Co., 228 Pa. 482, 486, the suit was by both parents to recover for the negligent killing of two children; it was held that the older child was guilty of contributory negligence and that, since the father had committed the younger child to her care and “the accident occurred through the contributing negligence of the sister, the latter’s negligence must be imputed to the father,” and there could be no recovery. In the recent case of Rapaport v. Pittsburgh Rys. Co., 247 Pa. 347, the suit was by the father to recover damages growing out of injuries to a minor child; we held that the contributory negligence of the mother (although she was not formally named as a
The cases just reviewed cannot be differentiated from the one at bar on the ground that, since in those instances both parents sued, the actions were joint and, therefore, one plaintiff not being entitled to recover, the other could not; for in the last case only one parent appeared as a plaintiff, and in Kerr v. Penna. R. R. Co., 169 Pa. 95, we held that, in cases of this character, the right of action was not jointly in the parents, in the sense that one could never sue to recover for the death of a child without the other joining, but that, where the circumstances justified it, one parent might sue alone. This being so, the joinder of the two parents would not make a suit a joint action in the technical sense oí that term; the mere fact that two join as plaintiffs does not fix the status of the action — there must be a joint right to constitute a common suit a joint action. If, however, the ca,ses cited are attempted to be explained on the theory that they were suits to enforce a joint right, that would not help the present plaintiff, for where a joint right exists each party is bound by the acts of the other, on the theory, of implied authority, to such an extent that one cannot rid himself of the consequences of the other’s acts within the scope of the implied authority; hence, where there is a joint right which begets joint obligations, a failure to perform these obligations by either party will affect the other, even though the suit to enforce the right may be brought by one alone; and the fact that in this particular case the other party lost his life in the course of his failure cannot change the rule. In the cases cited, we do not appear to have discussed the theory upon which one parent was held responsible for the negligent acts of the other, but there is nothing in any of them to indicate that the technical rules applicable to joint actions were at all considered. The true doctrine, and the one upon which the cases, no doubt, turned, is that, while
Moreover, the fact that the plaintiff rests upon a statutory right to bring her suit can in no way affect the conclusion reached. In several of the cases cited the right to prosecute the action rested upon the same statutory authority invoked in the present case, and in each of these a recovery was denied on the theory of imputed negligence. There was no right at common law to recover damages for negligence causing death (Kerr v. Penna. R. R. Co., supra); this was first conferred in Pennsylvania by the Act of April 15, 1851, P. L. 669 (Sec. 18-19), followed by the Act of April 25, 1855, P. L. 309, which specifies the persons now entitled to recover. While the statutes in question give the right to pursue the wrongdoer, after the death of a person injured, and designate who may bring suit and how the money recovered shall be divided, yet, in each instance the foundation of the claim and the defenses which may be interposed are the same as though the victim of the trespass had not died. In Hill v. Penna. R. R. Co., 178 Pa. 223, 230, we said: “Without these acts the cause of action for a specific act of negligence would have died with the person and there could then be no recovery by anybody; but......under the acts, the action does not
It would serve no useful purpose to review and distinguish the cases from other .jurisdictions which hold that the contributory negligence of one parent does not bar the right of the other to recover for the death of a child; it is sufficient to say that such is not the Pennsylvania rule and that most of these decisions from other states rest upon the peculiar phraseology of, and the construction put upon, their particular statutes. 7 A. & E. Ency. of Law (2d Ed.) 445, states the general
The assignment of error is overruled, and the judgment is affirmed.
Dissenting Opinion
Dissenting Opinion by
This is an action brought by a mother to recover damages for the death of her son. Ignotto Darbrinsky and his ten year old son, Harry, were killed on December 13, 1909, as the result of a collision of a wagon, driven by the father, with the defendant’s train at a grade crossing in Lawrence County. At the time of the accident the son and his elder brother were sitting in this rear of the wagon. Lena Darbrinsky, the widow of Ig
An action did not lie at common law for death caused by the negligence or violence of another, but the right to bring such action has been conferred by statute in most, if not all, the states of this country. The party seeking to recover must rely upon the statute which confers the right of action and declares who shall be the beneficiaries. In this State, the Act of April 15, 1851, P. L. 669, authorizes the widow or, in case there is none, the personal representative of the deceased, to maintain an action whenever death is caused by unlawful violence or negligence. This was followed by the Act of April 26,1855, P. L. 309, which declares that the persons entitled to recover the damages shall be the husband, widow, children or parents of the deceased, and that the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy, and “that without liability to creditors.” These statutes have been frequently construed by this court.
The mother, the plaintiff, can only be held responsible for such negligence, contributing to the death of the child as was committed by herself or by her authorized agent or servant. If she had put the child in the custody or care of another whose negligence contributed to its death, her right of action would have been barred. The act of her agent or servant would in law have been her act and would have prevented a recovery. It is contended, however, that by reason of the marital relation existing between the husband and wife, the former’s negligence is imputable to the latter, but I submit that the proposition is clearly erroneous. The father was not the agent of the mother in the care and control of the child nor entrusted with the custody of the child by the mother at the time of the accident. He had the right to its custody and control and was exercising that right when the collision occurred which resulted in the child’s death. If, therefore, the mother is to be deprived of the right to recover by reason of the negligence of the father, she will be held responsible for the negligent act of another who was not her agent or servant and over whom she had no control whatever. We are not familiar with any principle of law which sustains the proposition. If the husband’s estate or his heirs, taking through him, were entitled to the damages recovered or had any interest therein, his negligent act could be invoked to prevent a recovery, but as already pointed out, the statute declares that, under the circumstances of this case, the mother alone is the beneficiary of the amount recovered under its provisions. She does not sue or take the money .recovered by. reason of the marital relation with her husband or by reason of being his widow or through him in any way whatever, but distinctly and solely by reason of the right conferred upon her by the statute. The negligence of the father cannot be imputed to the child: O’Toole v. Pittsburgh &
It is contended that the present case in which the mother brings the suit cannot be differentiated from the cases where the actions were brought by both parents and a recovery was defeated by the negligence of one of the plaintiffs. This contention is manifestly erroneous in view of the provisions of the statute conferring the right of action and the purpose of the legislation. The statutory cause of action is “unlawful violence or negligence” resulting in death, and the persons entitled to recover the damages are “the husband, widow, children or parents of the deceased.” We have frequently ruled, and it is a necessary conclusion from the statute, that in the case of the death of .an infant caused by negligence, the action must be in the names of both parents, if they are living. Both parents are grouped among the persons entitled to recover damages, and by necessary implication the same damages, or damages estimated by a common standard: Penna. R. R. Co. v. Bantom, 54 Pa. 495, 497. The action is joint, and the recovery is also joint and enures to the benefit of both parents. It is, therefore, clear, under all the authorities, that the negligence of either plaintiff would defeat the action. It is settled law that where a right of action is given jointly to several parties and a joint suit is brought to enforce it, a meritorious defense against one plaintiff will bar the action as to the other plaintiffs: McDonald v. Simcox,
Kerr v. Penna. R. R. Co., 169 Pa. 95, was an action brought by a married woman who had been deserted by her husband to recover damages for the death of their minor child, and the statement averred that the plaintiff was the only person entitled to recover for his death, as her husband, the father of the boy, had deserted her and their son more than eight years before the commencement of the suit, and through drunkenness and profligacy had failed and refused to provide in any way for either of them. We sustained her right to sue without joining her husband, which was the only question in the case, solely on the ground that the Act of May 4, 1855, P. L. 430, conferred on her the common law rights and duties of her husband in relation to the child, and “her legal relation to her son (under that statute), was the same as if her husband had been dead.” We did not and could not hold that the right of action was not joint and given to the parents when both are living, because the statute declares that it is, and in Penna. R. R. Co. v. Zebe, 37 Pa. 420, we distinctly negatived the proposition
The question raised here is one of first impression in this State on the facts presented in the record, but the principle controlling its solution is settled by decisions in this and other jurisdictions. The very recent case of Senft v. Western Md. Ry. Co., 246 Pa. 446, is a much stronger case for the defendant on the facts than the case at bar, and we there held that the negligence of the husband could not be imputed to his wife who brought the suit to recover for injuries sustained in a collision by defendant’s train with a one-seated automobile in which the plaintiff and her husband were riding. The husband was driving the machine and his wife wa's seated at his side. He was clearly guilty of negligence but the court instructed the jury that his negligence could not be imputed to his wife. The jury found that the plaintiff was not negligent, and returned a verdict for her. The judgment entered on the verdict was sustained by this .court, the chief justice who wrote* the per curiam saying: “The negligence of the plaintiff’s husband in not stopping before attempting to cross the track could not be imputed to her.”
The doctrine announced by the majority of the court finds no support in the decisions in other jurisdictions. The right to recover for death caused by a wrongful act is of statutory origin, and the first statute conferring the right was Lord Campbell’s Act, 9 and 10 Victoria, enacted in England in 1846, and similar statutes have generally been adopted in the United States: Penna. R. R. Co. v. Adams, 55 Pa. 499, 501; Deni v. Penna. R. R. Co.,
I would reverse the judgment and grant a new trial.
