138 A. 751 | Pa. | 1927
Argued May 17, 1927. John Regan was struck by an automobile which defendant was driving, and, about two weeks later, died; plaintiff, widow of deceased, brought this action to recover for his death, alleging it to have been the result of defendant's negligence. A verdict was rendered in favor of plaintiff; defendant moved for judgment n. o. v., and also for a new trial; the court below dismissed the first motion but sustained the second, and, in doing so, said, "We have satisfied ourselves that, under the evidence submitted at the trial . . . . . . defendant could not be held liable [in damages] for the death of John Regan. . . . . . There is, however, proof . . . . . . of a doctor's bill . . . . . . which was incurred by reason of the injuries sustained by the said John Regan, and for which the defendant might be held responsible." Finally, the court states: "The only way in which we can dispose of this case justly and equitably is . . . . . . to allow a new trial." Defendant has appealed. He complains of the refusal of his motion for judgment n. o. v. and also because the court below granted a new trial; though, as a matter of fact, he prayed the latter relief, and this he was not obliged to do under the act to which we are about to refer.
An appeal by one in the present defendant's position, from a comprehensive order such as entered in this case, is authorized by the Act of 1925, P. L. 221, but its determination is controlled by the rules governing appeals from orders which simply grant a new trial (March v. Phila. W. C. Tract. Co.,
Defendant contends that the opinion of the court below shows the presence of the doctor's bill as the sole reason for allowing a new trial, and he argues that this is an insufficient ground, because plaintiff is not legally entitled to recover such an item. True, the opinion of the court below fails to recite any other specific reason for granting the new trial, but it does not exclude the possibility of the existence of other reasons. On the contrary, the opinion, by stating that "justice" and "equity" require a new trial, suggests that more than the particular reason which we have mentioned must have impelled the court to enter the order now complained of; and we have heretofore decided that the mere fact of the discussion of only one reason does not necessarily determine that it was the exclusive cause which moved the court to enter a new trial: Class Nachod Co. v. Giacobello,
What we have said to this point is sufficient to dispose of the present appeal, but, since the case has been ordered *171 for retrial, it seems wise to consider the question raised by defendant concerning the right of plaintiff to recover the amount of the doctor's bill, for services rendered to the deceased as a result of the accident.
Plaintiff's right to maintain an action for the death of her husband rests upon the provisions of section 19 of the Act of 1851, P. L. 674, which reads as follows: "Whenever death shall be occasioned by unlawful violence or negligence and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased . . . . . . may maintain an action for and recover damages for the death thus occasioned." We have held that under this act there can be recovery only for pecuniary loss sustained by those whom it authorizes to sue: Burns v. Penna. R. R. Co.,
Since, however, it has been suggested that plaintiff's right of action is for any damages which the deceased might have recovered if living, and as there is no doubt that he could have recovered the cost of medical care, made necessary by defendant's negligence, even though the bill had not yet been paid, we shall consider the question of plaintiff's right in the premises from a broader aspect.
At common law no action or cause of action survived the death of the plaintiff. This rule has been largely departed *172
from in modern times by statutes providing for such survival; but, under Strain v. Kern,
The Act of 1851 created a new and distinct right of action in the widow, to recover for the death of her husband, occasioned by negligence; it was not a right to succeed to causes of action theretofore existing in the deceased: McCafferty v. Penna. R. R. Co.,
The Pennsylvania authorities, which hold that after a death of an injured person there can be a recovery for medical services, are all instances where the suit was instituted by parents for the death of a minor child. Those cases stand on a different footing from this one, because there is a legal obligation on the parents to provide medical services for their offspring; whereas, as we have pointed out above, the present plaintiff was under no such obligation.
Since this case was argued, the legislature has passed the Act of May 13, 1927, P. L. 992 (Act No. 480), which permits persons entitled to maintain such an action as the one now before us, to recover, "in addition to the damages now recoverable in such actions, the expenses incurred for medical and surgical care and for nursing *173
of the deceased, and such other expenses caused by the injury which resulted in death, as could have been recovered in an action begun by the injured person in his lifetime; and also the reasonable funeral expenses of the deceased, if plaintiff has paid or incurred such expenses." This, however, cannot affect the present case, as the right of action had accrued and the suit was pending when the above statute was passed; such a statute so far as it confers new substantive rights must be construed so as to operate prospectively, and not retrospectively (Lewis v. Penna. R. R. Co.,
Although of opinion that plaintiff cannot recover the amount of the doctor's bill, yet, for the reasons stated in the first part of this opinion,
The order appealed from is affirmed. *174
