Smith v. Lehigh Valley Railroad
81 A. 554
Pa.
1911
Check Treatment

Opinion by

Me. Justice Moschziskee,

This is an action instituted by a wife and husband under sec. 1, of the Act of May 8,1895, P. L. 54, to recover for personal injuries to the former and consequential losses to the latter. Pending the action the husband died and his wife was appointed administratrix of his estate; she continued the suit and obtained two verdicts, one for $2,000 in her own right, and the other for $500, as the personal representative of the estate of her deceased husband. Judgments were entered on both of these verdicts and the defendant has appealed.

The questions involved as printed in the appellant’s paper-book suggest but two points for our consideration; *460the first is, “Does action brought by husband for negligent injury to wife not resulting in her death survive to his personal representatives?” To start with, “At common law, a cause of action by a husband to recover for personal injuries to his wife, and for loss of her services and for medical expenses resulting from such injuries, did not survive the death of either party:” 21 Ency. of Plead. & Prac., 341. Generally speaking, a right of action to recover damages for injuries done to person or property did not survive; but this rule was relaxed by the statute of 4 Edw. Ill, chap. 7, and its supplements, so that thereafter, in certain instances, personal representatives had the same remedy as the decedent himself. While these old English statutes were declared to be in force in Pennsylvania, and were given a liberal construction, still it was held that they had reference only to wrongs which had inured to the benefit of the defendant or increased the assets of his estate at the expense of the personal property of the plaintiff’s decedent: Penrod v. Morrison, 2 P. & W. 126; Lattimore v. Simmons, 13 S. & R. 183. But the Act of February 24, 1834, P. L. 70, provided by sec. 26, “The executors or administrators of any person who at the time of his decease was a party,- plaintiff, .... in any action .... shall have full power, if the cause, of action doth by law survive to them, to become party thereto, and prosecute .... such suit .... to final judgment .... as fully as such decedent - might have done if he had lived . . . .,” and by sec. 28, “Executors or administrators shall have power to commence and prosecute all personal actions which the decedent whom they represent might have commenced and prosecuted, except actions for slander, for libels, and for wrongs done to the person; . . . .”

The words “except actions for .... wrongs done to the person,” as used in this statute, do not describe a type of action but mean actions to recover for wrongs in the nature of physical injuries done to the person of the plaintiff decedent; and in interpreting this statute they have *461been so construed: Moe v. Smiley, 125 Pa. 136. At the time the statute was passed a husband had the common-law right “to commence and prosecute” an action in tort to recover for the loss of his “wife’s society and services, and for expenses incurred:” 21 Cyc. 1526; Donoghue v. Consol. Trac. Co., 201 Pa. 181. Since the effect of the act of 1834, supra, was to make all actions which a decedent had the right to commence and prosecute survive to his personal representatives, other than those particularly excepted (Miller v. Wilson, 24 Pa. 114, 122), and since the act did not except actions of this character, a husband’s right to recover damages for the loss of the services of his wife survives his death.

Before leaving this branch of the case it may be well to note that the phrase “wrongs done to the person” in sec. 28 of the act of 1834, supra, and the phrase “injuries to the person” in sec. 18 of the Act of April 15, 1851, P. L. 669, are similar in meaning (Moe v. Smiley, supra); and that we have uniformly treated the latter as signifying injuries to the person of the plaintiff bringing the action, (Birch v. Ry. Co., 165 Pa. 339; Taylor’s Est., 179 Pa. 254; Maher v. Traction Co., 181 Pa. 391; Rodebaugh v. Traction Co., 190 Pa. 358, 362; McCafferty v. Railroad Co., 193 Pa. 339; Edwards v. Gimbel, 202 Pa. 30, 39); and not as designating a. type of action arising in whatever way from injuries to the person. The two sections referred to deal with a like subject, and there is no reason why the similar phrases used in each should not be given a like limited meaning. But if they were to be given a broader signification and held to embrace all actions growing out of injuries to the person, then the verdict recovered by the personal representatives of the deceased husband 'would fall within the remedial provision of sec. 18 of the act of 1851, supra. However, looking at the question for determination -in the light of our decided cases, we are brought to the conclusion that the phrases must be construed as before stated, that the act of 1834, supra, saved the action of Anthony W. Smith from abat*462ing by his death, and that his suit could be “prosecuted” by his administratrix “as fully as such decedent might have done if he had lived.”

The second question involved as stated by the appellant is, “Can plaintiff recover on proof of negligence not alleged in her statement filed?” The defendant contends that the testimony adduced was not sufficient to support the averment in the statement describing the occurrence which brought the injuries upon the plaintiff, Mary Smith. The testimony was sufficient, if believed, to justify the jury in finding that a defective condition of the defendant’s tracks, which had existed for a sufficient length of time to put it on notice, caused one of its cars to become derailed and run into the frame dwelling house occupied by the plaintiff, thereby throwing Mrs. Smith to the floor' and producing the ’injuries of which she complained. Under these circumstances we cannot say that the allegata and probata did not agree, or that there was not sufficient evidence to sustain the verdict, if the jury saw fit to accept the testimony of the plaintiff and her witnesses.

The first, second, third and sixth assignments which cover all of the matters comprehended in or suggested by the statement of the questions involved, are overruled; the other assignments which complain of instructions and rulings unrelated to these matters and in no way suggested by the statement of the question involved, are dismissed: Willock v. Railroad Co., 229 Pa. 526. If the appellant desired the points covered by these latter assignments reviewed, it would have been sufficient, after stating the main questions for determination, had counsel added a few words to this effect, “Correctness of instructions as to the effect of nonproduction of certain testimony, and concerning the condition and conduct of plaintiff after accident; rulings on admission and rejection of testimony.” If those instructions and rulings were necessarily involved in or suggested by the principal questions stated, then this course would not be required, or desired. While we do not specifically pass upon the assignments in *463question, we will say that we are not convinced that the court below fell into any reversible error.

The judgment is affirmed.