203 Pa. 511 | Pa. | 1902
Opinion by
Section 1 of the Act of April 26,1855, P. L. 309, provides that “ the persons entitled to recover damages for any injury caus
The appellants in the present case though children of the deceased were over age and the family relation had been severed. They had therefore no right of action. All of the cases from the passage of the act have uniformly held that the damages recoverable under it are compensation for direct pecuniary loss only, and unless such loss be shown there can be no recovery. In the case of minor children the reciprocal legal rights of support and to receive the earnings raise a presumption of loss, unless it appear that the children have been emancipated and put on the pecuniary footing of adults. But if the children are of full age the direct pecuniary loss must be affirmatively shown. The rule as most commonly expressed is that the family relation must be shown to have existed. “ Parents and children in the section seem to be words used with an intention •to indicate the family relation in point of fact as the foundation of the right of action without regard to age. . . . Under age the law presumes the relation to exist and that stands for proof until the contrary appears. Over age no doubt but the relation must be shown to exist in point of fact: ” Penna. R. R. Co. v. Adams, 55 Pa. 499. And “ if there be a reasonable expectation of pecuniary advantage from a person bearing the family relation, the destruction of such expectation by negligence occasioning the death of the party from whom it arose, will sustain the action: ” North Penna. R. R. Co. v. Kirk, 90 Pa. 15.
No case has departed from this rule, and the most liberal application of it was in Schnatz v. Phila. & Reading R. R. Co., 160 Pa. 602, where it was held that the family relation might be deemed to exist though the parent and children did not live in the same place, if the latter had received pecuniary benefits in the way of entertainment, contributions of money or clothing or food, etc., so regularly and for so many years as to justify a reasonable expectation of continuance. But even in that case it was said that “ occasional gifts made or services rendered by a parent to daughters who had long before her death left her home and established homes of their own, are not sufficient proof on which to found a pecuniary loss.”
Appellants rely largely on North Penna. R. R. Co. v. Robinson, 44 Pa. 175, where an action in the joint names of four
The appellants having no right of action in themselves, acquired none from the right of the widow. It would be absurd to say that if the father had been a widower, appellants would have had no claim, but if he had married the day before his death, they would have become entitled to two thirds of what the widow might recover in her own right under the statute. The language of Thunkey, J., in Lehigh Iron Co. v. Rupp, 100 Pa. 95, already cited, is peculiarly apposite. “ If the parents take equally with the widow, the main object of the statute is in part defeated. Besides, in some cases the parents would share with her, when, if the deceased had not been married, they would have no right at all. In such case as the present, by sharing with the widow they take half what the loss was to her, when, if their son had been single, they would only be entitled to the value of his services for less than two years. Results so preposterous are not within the intendment of the statute.” The appellee makes certain very serious preliminary objections to this proceeding, particularly to the attempt of a stranger to the record coming in after judgment by summary rule, not only against the plaintiff but also against a purchaser without notice. But as the court below decided the case in favor of the appellee on the merits, these objections áre not before us. We may say, however, that the proper remedy is by bill as in Allison v. Powers, 179 Pa. 531.
Judgment affirmed.