55 Pa. 499 | Pa. | 1867
— The important question of this case is, whether the plaintiffs, the father and mother of the deceased, who lost his life by the culpable negligence of the defendants’ servants while transporting him as a passenger on the line of their road, can recover damages on account of his death under the provisions of the Acts of Assembly of the 15th April 1851 and 26th April 1855, he being at the time six or seven and twenty years of age. The negligence on part of the servants of the company was admitted, but the right of the plaintiffs to recover denied, on the ground that, the deceased being over age at the time, and not liable or subject to the control of his father, the latter had no right to his services, and consequently could sustain no injury by a deprivation thereof. The learned judge was of a different opinion, and so charged in answer to the defendants’ 1st point. We shall consider this assignment of error first.
This point is res nova with us, and is now for the first time distinctly before us for adjudication. At common law, no private suit or action lay to compensate any one, parent or child, husband or wife, brother or sister, for a loss occasioned by the negligent or violent destruction of life. The right is altogether of statutory origin, and I believe began in England with the passage of the statute of 9 & 10 Victoria, cap. 93, on 26th August 1846, from whence, by similar enactments, at least so far as the right is concerned, it has become very generally adopted in the United States.
The first enactment in this state is that above mentioned of the 15th April 1851, in which the action is given to the widow of “any such deceased,” or if there be no widow, to the personal representatives of the deceased. It is unnecessary to say how far and in whose favor this peculiar phraseology of the act carried the right of suit, for by the Act of 26th April 1855 it is declared that, “ the persons entitled to recover damages for any injury causing death shall be the husband, widow, children or parents of the deceased, and no other.” “ 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 in such a case without regard to age, for the act fixes no period at which parents may not sue for the loss occasioned by the death of a child, the result of negligence or violence. 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. That being done, the right to sustain the action is established. That we think was very clearly shown in the case in hand. The deceased, although over age, was unmarried and had always lived with and labored for his parents. His earnings were devoted to
There are two cases exactly in point to this effect, upon the 9 & 10 Victoria, cap. 93, the statute already referred to as the pro bable origin of the legislation in this country on the subject we are considering, which provides, “ That every such action shall be for the benefit of the wife, husband, parent and child.” It differs only in the form of the expression from our act, which says, the action shall be by “ the husband, widow, children or parents of the deceased.” The first of these cases is Dalton v. The South Eastern Railway Co., 93 E. C. L. R. 296. In that case the son, whose loss it was the object of the action to recover for, was twenty-eight years of age, unmarried, and living away from his parents. But it appeared that for the last seven or eight years he had been in the habit of visiting them once in a fortnight, and taking to them on those occasions presents of tea, sugar and other provisions, besides money, amounting in the whole to about ¿620 a year. The suit was for the benefit of the
What we said in The Railroad v. Zebe, 9 Casey 318, is entirely consistent with these.views. We were there speaking of a case in which the suit was for occasioning the death of a minor. The legal right to his services was in the plaintiffs, at least in the father, when the accident occurred; and upon that right the plaintiffs’ recovery was allowed. It could not be known whether he would continue the relation after he came of age or not, and as that ground of recovery was not before us, we referred only to that which was. In the case in hand the recovery was not upon the legal right to services, but upon an expectancy resulting from the voluntary continuance of the family relation, and the expectation of the continuance of the support already given. Quite a different principle. This case does not aid the plaintiffs in error in the least.
2. We think the 3d assignment of error is not sustained. The arrangement which the deceased had made to send his bounty-money to his father was evidence on the question of the continuance of the relation between the son and his parents, and the expectancy of support by them in the future from him. If the testimony was admissible for any purpose, it was proper to receive it. What the learned judge said as to the effect it was to have on the minds of the jury was not excepted to, and is not beiore us. For my own part, I think there was nothing wrong in that, but this is not necessary or proper to be any portion of our judg