35 A.2d 570 | Pa. Super. Ct. | 1943
Argued October 26, 1943. This plaintiff, as trustee ad litem,1 recovered a verdict against the defendant township for damages sustained in the death of his minor daughter on March 21, 1940, from injuries received by her the day before, because of the negligent maintenance of a township road. The action was brought December 2, 1940, a little more than eight months after the accident.
After the verdict had been rendered the defendant moved for judgment non obstante veredicto in its favor on the ground that the plaintiff had failed to show a compliance with the Act of July 1, 1937, P.L. 2547, sec. 1, which provides that after its effective date "any person, etc. claiming damages from any . . . . . . township . . . . . . or other municipality, arising from the negligence of such municipality or any employe thereof, shall, within six (6) months from the date of origin of such claim or within six (6) months from the date of negligence complained of, file in the office of the clerk or secretary of such municipality a notice in writing of such claim, stating briefly the facts upon which *208 the claim is based. Such notice shall be signed by the person orpersons claiming damages or their representatives. No cause of action may be validly entered of record where there was a failure to file such notice within the time required by this act, except leave of court to enter such action upon a showing of a reasonable excuse for such failure to file said notice shall first have been secured." (Italics supplied). No such notice had been given in this case.
The court below ruled that the giving of written notice as prescribed in the act was mandatory and entered judgment for the defendant non obstante veredicto. Plaintiff appealed.
It appears from the opinion of the court — by agreement of the parties, only a small part of the record was printed — that at the conclusion of the plaintiff's case, defendant moved for a compulsory non-suit, based on the failure of the plaintiff to comply with said provision of the Act of 1937. But the motion was denied so that the case might be heard on the merits and the question passed upon, if necessary, by a motion for judgment non obstante veredicto.
The testimony clearly established that one of the township supervisors had notice of the accident, which resulted in the death of the minor child, the same night that it occurred, and that accompanied by another supervisor, he went to the site of the accident the next morning — after the child's death — and made observations of the condition of the highway at the place where the car slipped and went over the embankment, and of the wheel tracks leading from the highway to where the car finally came to rest. The third supervisor consulted a lawyer about the matter the day after the accident, and on his advice the three supervisors, accompanied by two disinterested witnesses, went to the scene and made complete measurements and observations, and obtained all the information available for use *209 in defense of an anticipated action of trespass. It may be said to be definitely established that the giving of the notice prescribed by the Act of 1937 would not have aided the township in the preparation of its defense, and that the failure to give the notice did the township no harm.
The child was only five years old at the time of her death. She had no estate that would justify the taking out of letters of administration. Prior to September 4, 1939, the action to recover damages for her death would have to be brought by her parents, for under the Act of April 1, 1937, P.L. 196, amending the Act of April 26, 1855, P.L. 309, as already amended by Act of June 7, 1911, P.L. 678, her personal representative would only be entitled to bring an action in the event that she left no parents or other relatives entitled to recover damages for her death.
But on September 4, 1939 the Rules of Civil Procedure promulgated by the Supreme Court governing actions for wrongful death went into effect, and Rule 2202 provides:
"(a) Except as otherwise provided in clause (b) of this rule, an action for wrongful death shall be brought only by the personal representative of the decedent for the benefit of those persons entitled by law to recover damages for such wrongful death.
"(b) If no action for wrongful death has been brought within six months after the death of the decedent, the action may be brought by the personal representative or by any person entitled by law to recover damages in such action as trustee ad litem on behalf of all persons entitled to share in the damages. . . . . . ."
It will be seen that under Rule 2202 no action could be brought by a trustee ad litem because of the child's death until six months after the death; and the notice prescribed by the Act of 1937 supra had to be filed "in the office of the clerk orsecretary" of the township *210 within six months from the date of the origin of the claim orwithin six months from the date of the negligence complained of; and it had to be signed by the person or persons claiming damages [not, entitled to damages] or their representatives.
Under Rule 2202, while the parties ultimately entitled to the damages recovered in an action for wrongful death would be those named in the Act of April 26, 1855, P.L. 309, as amended, theclaim must be made in an action brought by the personal representative of the dead person, or by a trustee ad litem — who must be some person, (not every person), entitled by law to recover damages — for the benefit of all persons entitled to share in the damages.
We understand that the failure to give the notice required by the Act of 19372 was due to the fact that the attorney who then represented the parents, like many other lawyers, did not know of, or, at any rate, did not remember, that act; but the rule of civil procedure delaying the bringing of an action by a trustee ad litem for six months may have had some part in it. In any event, the notice was not given, and the question now before us is whether the neglect to give such notice imperatively bars a recovery in circumstances like the present, and where no benefit would have accrued to the defendant if such notice had been given and no harm was done it by the failure to give it.
The Act of 1937, supra, has been considered by our appellate courts in four cases. *211
In Lutz v. Scranton,
In O'Hara v. Scranton,
The Supreme Court, speaking through Mr. Justice LINN, gave short shrift to the technical contention of the city when it came before that court, saying (p. 142): "We do not understand the city's objection. The record shows that a notice dated May 12th complaining of the injury on the preceding April 29th, was given to the City Council. A statement of claim was filed September 13, 1938, within the six months period; in addition, the record shows a stipulation of counsel for both sides that the written notice was received by the city council on May 12th and was filed with the city clerk,"
In Matthews v. Plum Twp. et al.,
The case nearest like this one is McBride v. Rome Township,
It will be noted that the statute provides that where there is a failure to file such notice within the time required by this act, no cause of action may be validly entered of record, except leave of court to enter such action shall first have beensecured, upon a showing of a reasonable excuse for such failure to file said notice; that is, such leave must have been secured, on a showing *215 of a reasonable excuse, before bringing the action. That was not done in the McBride case. The application was made over a year after the accident and at least a month after bringing the action. However the Supreme Court was moved to grant the relief prayed for, nunc pro tunc, since the default was due to the negligence or oversight of counsel, and it clearly appeared that the township had not been harmed by the failure to give the notice; even though the giving of notice so long after the accident and after the bringing of suit would be of no benefit to the township.
All of these cases reject an absolutely literal compliance with the act where it would amount to a denial of justice to an injured plaintiff, and not benefit the defendant municipality; and the McBride case deals leniently with a plaintiff whose counsel, through ignorance of the act, failed to give the required notice, but no harm thereby resulted to the defendant.
We think the leniency shown by the Supreme Court in the McBride case may properly be extended to the present case; for here we have, in addition to the negligence or oversight of counsel, a delay occasioned, to some degree, by a new Rule of Civil Procedure, to the workings of which counsel were unaccustomed; and the fact, clearly established, that the want of such written notice was not harmful to the defendant.
It is but fair to the learned judge, specially presiding in the court below, to state that the decision in McBride v. RomeTownship, supra, was not filed by the Supreme Court until after the judgment appealed from was entered in the court below.
We do not sustain any of the constitutional objections to the Act of 1937 urged upon us by counsel for appellants.
The defendant does not object to the amount of the verdict. Hence we will consider the case as if the plaintiff had moved the court below for leave to file the *216 notice required by the Act of 1937, nunc pro tunc, and such leave had been granted, prior to the verdict of the jury.
Thus considered the judgment of the court below is reversed and judgment is directed to be entered on the verdict on payment of the jury fee.