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January 19, 1940

VOELKEL et al.

The opinion of the court was delivered by: KIRKPATRICK

This was a civil action for the negligent killing of a five-year-old boy, brought jointly by his administrator and by his parents in their own right. Under the Pennsylvania statute the joinder of plaintiffs was proper.

Trial by jury resulted in a general verdict for the plaintiffs in the amount of $1,710. To interrogatories submitted by the Court, the jury answered that the $1,710 was awarded to the parents and that nothing was awarded to the administrator of the estate. The plaintiffs move for a new trial.

 The amount of the recovery by the parents seems to be about right, and a new trial will not be granted on the ground of inadequacy.

 The other grounds upon which a new trial is sought are (a) erroneous instructions by the Court as to the measure of damages for the administrator, and (b), assuming the correctness of the Court's instructions, the fact that the jury found generally for the plaintiffs but awarded no damages to the administrator.

 The instructions to the jury as to damages recoverable by the administrator are too long to quote in full, but what the Court said was, in substance, that the jury might find a verdict for the economic value of the boy's life from the time he became 21 years of age until his death according to ordinary human expectancy; and economic value was defined as "the present value of the net result remaining after his personal expenses are deducted from his income or earnings." The jury were instructed to ascertain first "the gross amount of such prospective income or earnings, then * * * deduct therefrom what the deceased would have had to lay out as a producer to render the service or to acquire the money that he might be expected to produce, computing such expenses according to his station in life, his means and personal habits, and then to reduce the net result to obtained to its present value."

 It may be noted in passing that the Court did not submit to the jury items either of pain and suffering or of medical, hospital and funeral expenses. No complaint is made of the charge in this respect. The boy died before he reached the hospital, having had no conscious moment after being struck, and the parents bore whatever expenses there were.

 The question of the correct measure of damages in an action by an administrator for death by negligence is one of exceptional difficulty.It has been passed on in several opinions by the Courts of Common Pleas of Pennsylvania, but there is no Supreme Court decision upon that point, since the enactment of the existing statutes under which this suit was brought.

 We may start with Judge Heiligman's statement in Gannon v. Lawler, 34 Pa. Dist. & Co. R. 571, 576, to the effect that the present statutory law is that if no suit is brought by one who dies of injuries sustained through negligence of another, the relatives (in this case parents) of the decedent may sue the wrongdoer for the pecuniary loss which the death caused them, and the personal representatives of the decedent may sue the defendant upon whatever cause of action the decedent might have sued in his lifetime.

 The parents' rights stem from Sec. 19 of the Act of April 15, 1851, P.L. 669, 12 P.S.Pa. § 1601. That section provided that "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, or if there be no widow, the personal representatives may maintain an action for and recover damages for the death thus occasioned." The part of this section which gives the widow the right to sue was legislation of a class generally called death acts.

 The right given to the personal representatives (in case there was no widow) by the section quoted was entirely different, and statutes creating similar rights are known as survival statutes. This particular survival provision kept alive, not an action brought by the decedent, but the cause of action, the decedent having brought no suit. Sec. 18 of the Act of 1851 provided for the survival of the law suit.

 The survival clause of Sec. 19 of the Act of 1851 did not remain long in force. By the Act of April 26, 1855, 12 P.S.Pa. § 1602, it was abolished, and there was no statute in Pennsylvania providing for the survival of the cause of action, as distinguished from the action, between 1855 and 1917. The effect of the Act of 1855 was to make Sec. 19 of the Act of 1851 a true death statute, the class of beneficiaries being enlarged to include parents and children as well as the widow. This section, with subsequent amendments, still is in force and is the statutory authorization for the parents to appear as plaintiffs here. As is the case with all of the death acts, their recovery is limited to their own pecuniary loss and has no connection with what the deceased may have suffered or his estate lost.

 In 1917 there was an attempt to codify the survival legislation, by the Fiduciaries Act of June 7, 1917, P.L. 447, Secs. 35 (a) and 35 (b), 20 P.S.Pa. §§ 771, 772. Sec. 35 (b) was held unconstitutional because of defective title, but was subsequently reenacted by the Act of July 2, 1937, P.L. 2755, Sec. 2, 20 P.S. § 772.

 Sec. 35 (a) of the Fiduciaries Act had to do with the survival of an action brought by the decedent in his lifetime. It was a substantial reenactment of Sec. 18 of the Act of 1851, and it has no bearing upon the present case except so far as decisions under it may indicate views of the Supreme Court as to the proper measure of ...

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