216 Pa. 165 | Pa. | 1907
Opinion by
This is not a common-law action, but an action brought under the provisions of the Acts of April 15, 1851, P. L. 669, and April 26, 1855, P. L. 309. It is solely by virtue of the provisions of these statutes that damages are recoverable for the death of Henry Waltz. The latter act provides in its first section 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 relative, and the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy;’’ and in the second section it is provided that “ the declaration shall state who are the parties entitled in such action.”
Henry Waltz was a minor son of M. C. Waltz and of his wife Mary Waltz, and the parents are both living. It is, therefore, apparent that in bringing the suit the act of 1855 was entirely disregarded, notwithstanding the plain terms of the statute and the numerous decisions of this court pointing out the “proper practice. The action should have been brought jointly in the names of both parents and the statement should have given the names of the parties who were entitled to the damages recovered. Neither of these requirements of the statute was complied with, and the trial court was clearly wrong
But the error of the plaintiff’s counsel in bringing the action and of the ruling of the trial court was cured by what occurred at the trial. The defendant’s counsel requested the court “ to instruct the jury that if they find for the plaintiff, to state in their written verdict whether the damages so found are for the full compensation for both parents of the deceased.” Complying with this request, the court instructed the jury as follows: “We instruct you, if you find for the plaintiff, to find full compensation and damages so far as affects both parents, and you must say in your verdict that you so find; that is, you will find full compensation in damages, whether due the father or due the mother, or due both the father and the mother.” The written verdict of the jury was in the following language: “We, the jurors impaneled in the above-entitled case, find for the parents the sum of $1,446.50, total damages for death of son.” Judgment was entered on this verdict.
It will therefore be observed that at the instance of the defendant company, the record was amended in fact, though not formally, on the trial so that both parents were made plaintiffs, and that the case" was tried and the verdict was rendered for both on which a judgment was duly entered. It is from this judgment, in favor of both parents, we have this appeal; and it is not apparent to us how we can reverse the judgment because the parents were not joined in bringing the action and in recovering the judgment against the defendant. Mrs. Waltz, the mother of the deceased, is precluded from attacking the action of the court on the trial of the cause by which she was made a party plaintiff by the motion of her counsel to amend on April 4, 1905, which was allowed by the court. This was a ratification and approval by Mrs. Waltz of the action of the jury in considering and determining her rights as a party plaintiff in the action and of the entry of judgment on the verdict. She is therefore concluded as to any right of action accruing to her against the defendant by reason of the death of Henry Waltz. The defendant, company is likewise bound by the action of the court, taken on its initiative, in treating the suit as
The other questions raised on the record were properly disposed of by the Superior Court, and therefore, for the reasons above stated,
Its judgment is affirmed.
