when the injury was done and not afterwards; in cases where the injury does result in death, the limitation of action shall remain as now established by law.'
Under the Act of April 26, 1855, P.L. 309, Section 2, 12 Purdon's Penna.Statutes Annotated, Section 1603, it is provided that where a person dies as a result of an injury, the declaration or complaint shall set forth or state who the parties are that are entitled to recover damages as a result of said accident; and said action shall be brought within one year after the death of said person who was injured, and not thereafter. Where death occurs as a result of personal injuries, and an action is not brought during the lifetime of the person injured, two separate actions may be brought after death for the recovery of damages, subject to the limitations set forth in the Acts of Assembly hereinabove referred to.
Under the provisions of the Act of April 15, 1851, P.L. 669, Sec. 19, 12 P.S. § 1601, and the Act of April 26, 1855, P.L. 309, as amended by the Act of June 7, 1911, P.L. 678, Sec. 1, as amended by the Act of April 1, 1937, P.L. 196, Sec. 1, 12 Purdon's Penna.Statutes Annotated, Section 1602, it is provided as follows: 'The persons entitled to recover damages for any injuries causing death shall be the husband, widow, children, or parents of the deceased, and no other relatives; and that such husband, widow, children or parents of the deceased shall be entitled to recover, whether he, she, or they be citizens or residents of the Commonwealth of Pennsylvania, or citizens or residents of any other state or place subject to the jurisdiction of the United States, or of any foreign country, or subjects of any foreign potentate; and the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy, and that without liability to creditors under the laws of this Commonwealth. If none of the above relatives are left to survive the decedent, then the personal representative shall be entitled to recover damages for reasonable hospital, nursing, medical, funeral expenses, and expenses of administration necessitated by reason of injuries causing death.'
Under the provisions of the Act of July 2, 1937, P.L. 2755, Sec. 2, 20 Purdon's Penna.Statutes Annotated, § 772, it is provided as follows:
'Executors or administrators shall have power, either alone or jointly with other plaintiffs, to commence and prosecute all actions for mesne profits or for trespass to real property, and all personal actions which the decedent whom they represent might have commenced and prosecuted, except actions for slander and for libels; and they shall be liable to be sued, either alone or jointly with other defendants, in any such action, except as aforesaid, which might have been maintained against such decedent if he had lived.
'All such rights of action which were not barred by the statutes of limitation at the time of the death of decedent may be brought against the executors or administrators at any time within one year after the death of the decedent, notwithstanding the provisions of any statutes of limitations whereby they would have been sooner barred.'
The last two Acts of Assembly just cited were construed by the Supreme Court of the State of Pennsylvania in the case of Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659, in which the Court held, inter alia, as follows: If a suit for personal injuries is not brought during the lifetime of the person injured, two actions may be brought after the death of said person for the recovery of damages under the Act of April 15, 1851, P.L. 669, Sec. 19, and the Act of April 26, 1855, P.L. 309, as amended by the Act of June 7, 1911, P.L. 678, Sec. 1, as amended by the Act of April 1, 1937, P.L. 196, Sec. 1, and the other under Act of July 2, 1937, P.L. 2755, Sec. 2.
Such actions are entirely dissimilar in nature. The one represents a cause of action unknown to the common law, and is for the benefit of certain enumerated relatives of the person killed by another's negligence, or if no relatives are left to survive as set forth in the Act of Assembly, the right of action accrues to the representative of the estate for certain expenses incurred as a result of the injury which resulted in death. The other is not a new cause of action at all but merely gives to the personal representative of the deceased the right of action which accrued to the deceased at common law because of the tort or injury. These actions are cumulative and not authoritative, and it is, therefore, important that the two actions, the one under the death statutes and the other under the survival statutes, should not overlap or result in the duplication of damages and thereby compel a tort-feasor to pay more than the maximum damage caused by his negligent act.
In connection with the Acts of Assembly above cited which refer to the statute of limitations where a person is injured through the contraction of a disease, such as silicosis, as a result or failure of a person in the manufacturing of goods to personally maintain premises in such a manner as to not cause injury to individuals residing near to said premises, it has been held that the cause of action commences to run from the time that the individual last experienced or was subject to the elements which caused the disease that brought about death. Plazak, Appellant, v. Allegheny Steel Co., 324 Pa. 422, 188 A. 130.
In view of the authority just cited and construing the complaint in the instant case in a manner most favorable to the plaintiff, the deceased was last subject to the elements, which caused the disease and subsequent death, on April 30, 1939. It was, therefore, necessary that a cause of action be filed by her for the negligent acts complained of within two years and not thereafter from said date. In addition thereto, the Supreme Court of the State of Pennsylvania in the case of Howard, Appellant, v. Bell Telephone Co., 306 Pa. 518, 160 A. 613, held that where death occurs as a result of personal injury sustained through the negligence of another, and an action is filed in behalf of the heirs who are entitled to maintain an action, or by the Administrator for expense incurred as a result thereof, said rights of action are derived from or dependent upon the existence of a right of action in the person who was injured at the time of his death. The cause of action contemplated by the statutes is the tort. the unlawful violence or negligence, and not the death caused by the tort. To construe said statutes in any other manner would give to the heirs or the administrator a greater right than the injured person would have had if said person would have been living.
It has further been held by the Supreme Court of Pennsylvania in the case of McFadden, Appellant, v. May, 325 Pa. 145, 189 A. 483, that where an action is filed by the heirs of a deceased person who died as a result of the negligence of another, or by the administrator for expenses incurred, in such an action the defendant may interpose any defenses which were available against the deceased person who died as a result of the alleged negligence of the defendant.
It, therefore, appears that the defense interposed in the motion to dismiss under the statute of limitations is proper, and since the cause of action of the deceased came into existence on April 30, 1939, and the complaint was not filed until October 2, 1945, under the decisions of the Supreme Court of the Commonwealth of Pennsylvania, said cause of action is barred by the statute of limitations.
In view of the decisions of the Circuit Court of Appeals in this District and the Supreme Court of the United States that it is necessary for the federal court to accept the interpretations ascribed to state laws by the courts in the State where the cause of action arises, and to have uniformity exist as to causes of action under circumstances such as exist in this case, whether the action be filed in the state court or the federal court, the motion of the defendant to dismiss the complaint is sustained.
An appropriate order will be filed with this opinion.
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