The opinion of the court was delivered by: GOURLEY
This is a trespass case arising out of an automobile accident.
Actions have been filed by Barthol Stafford and Margaret Stafford, his wife, William Charles Barringer in his own right, and William Charles Barringer, trustee ad litem for the heirs of Mary Anne Barringer, his wife, against the Roadway Transit Company, a Michigan corporation.
In connection with the action of Barthol Stafford and Margaret Stafford, his wife, against the Roadway Transit Company, said defendant by appropriate motion secured leave of Court to bring upon the record as an additional or third-party defendant William Charles Barringer, who was the operator of the automobile involved in the accident with the tractor-trailer motor vehicle of the Roadway Transit Company.
Counsel for William Charles Barringer, as representative of the estate of his wife, Mary Anne Barringer, by written motion made on the 23rd day of October, 1946, which was after the case had been heard by the Court, requested leave to amend the caption of the complaint and summons by adding thereto William Charles Barringer, trustee ad litem for the heirs of Mary Anne Barringer, his wife, for the use of William Charles Barringer, administrator of the estate of Mary Anne Barringer, plaintiff, and William Charles Barringer in his own right. This motion was granted and allowance given by the Court on the 27th day of November, 1946.
The plaintiffs failed and neglected to request a jury trial within the period of time provided by the Federal Rules of Civil Procedure, rule 38(b). Motion was subsequently made for the award of a jury trial in each of said cases to other members of this Court and with objection of the defendant being made, the award for a jury trial was denied. By agreement and stipulation of the parties, all actions were tried together.
The Court, therefore, has heard the evidence, considered the briefs, suggested findings of fact and conclusions of law, and, in addition thereto, made a personal visit and had observation of the location of the accident prior to the taking of testimony, and in conformity with Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C.A.following section 723c, makes the following comment, finds the facts specifically and separately, and states conclusions of law thereon as follows:
Considerable testimony was introduced as to the circumstances which surrounded the accident, and no useful purpose would be gained by referring specifically to the testimony of each witness called by the respective party litigants. The pertinent facts are as follows:
On the night of June 20, 1942, arrangements had been made by the Barringer and Stafford families that a trip would be taken from Erie, Pennsylvania, to Buffalo, New York, for the purpose of attending a midnight show in the City of Buffalo, this being a Saturday night. The two families had been friends, and about 8:30 in the evening on June 20, 1942, Barthol Stafford and his wife drove to the Barringer home, and then the trip was made to Buffalo. The automobile used for the occasion was a 1940 Chevrolet sedan and was owned by Barthol Stafford. During the trip to Buffalo the car was driven by Barthol Stafford, and after arrival at that city the parties proceeded to attend the show. After the show Mr. Stafford secured his car from a parking lot and the parties made ready to proceed home. After the car was secured arrangements were made between the parties whereby Barringer was to drive the car home as a result of Stafford being tired, and during the greater part of the trip home and at the time of the accident, Mr. and Mrs. Stafford were sleeping in the back seat, and Mrs. Barringer was asleep beside her husband in the front seat. The accident occurred around 4:00 A.M. on the morning of June 21, 1942. The highway at the scene of the accident being approximately 20 feet wide, and the berm on each side of the highway at or near the scene of the accident varying in width from 5 to 12 feet. The condition of the berm was of such construction that it was available and suitable for vehicular use. There was a slight curve on the roadway to the left as the vehicle approached from Buffalo, with a slight downward grade in the direction of Erie, but, under normal atmospheric conditions, nothing existed to impair the vision of an individual driving from Buffalo at or near said curve in the direction of Erie to the place of the accident for a distance of approximately 1600 feet. At the time of the accident it was dark, the weather was clear and no atmospheric conditions existed which would tend to impair the normal vision other than the condition of darkness.
The rear-end collision was cuased due to the inability of the driver Barringer to avoid the striking of the Roadway Transit tractor-trailer, and in his effort to turn to the left to avoid the truck, the right side of said car came into a collision with the left rear of the truck.
As a result of the accident Barthol Stafford and Margaret Stafford, his wife, were injured, and damage was done to the motor vehicle of Barthol Stafford. William Charles Barringer, the driver of the motor vehicle, received personal injuries, and his wife, Mary Anne Barringer, was instantly killed. The question for determination in each of the cases is whether or not the defendant, Roadway Transit Company, and/or William Charles Barringer were guilty of negligence in creating the condition out of which the accident resulted, and if contributory negligence existed on the part of any or all of the plaintiffs.
In connection with all of the cases herein pending, certain general principles of the law of negligence will have application in the determination as to whether or not a right of recovery exists. The principles involved in the Stafford case will be different in some respects to those which exist in the Barringer case. This is true for the reason that in the Stafford case the Roadway Transit Company, the originial defendant, and William Charles Barringer are the defendants. In the Barringer cases, both in his individual right and as trustee for the use of the administrator of his wife's estate, Barringer maintains his action solely against the Roadway Transit Company. In addition thereto, there are many legal principles involved in each of these cases which do not have application in all of the cases. In order to intelligently and thoroughly approach the question of the right of recovery of any or all of the plaintiffs, it becomes necessary for the Court to consider each action separately and make application of the law which applies to that individual case when considered in light of the facts found by the Court.
Although specific findings of fact and conclusions of law will be made by the Court, in order to intelligently apply the law, the Court will generally refer to facts which have application to the legal question involved.
The first problem before the Court is, therefore, the orientation of the facts in this case into the law applicable in federal court. Federal jurisdiction is invoked solely on account of diversity of citizenship of the party litigants; there is no independent federal question involved before the Court in any of the claims. As a result thereof, the substantive law to be applied is the law of the Commonwealth of Pennsylvania, and the Court must, therefore, determine, by all of the available decisions which might exist, what rules of law have been accepted and established in the Commonwealth of Pennsylvania since it is the duty of the federal court to ascribe to the Acts of Assembly laws and decisions as made by the highest courts in this Commonwealth. Madden v. Kentucky, 309 U.S. 83, 60 S. Ct. 406, 84 L. Ed. 590, 125 A.L.R. 1383; Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487; Mitchell v. Ottinger, 3 Cir., 105 F.2d 334; Guaranty Trust Co. v. York, 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 2079, 160 A.L.R. 1231; Klaxon Co. v. Stenton Electirc Mfg. Co., Inc., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477.
Where the Supreme Court of Pennsylvania, or any other appellate tribunal in the Commonwealth of Pennsylvania has made no authoritative determination of the questions of law which exist, or the trial courts are in disagreement in connection with any point of substantive law, it is the duty of the federal court to attempt to determine by all available data the construction which the Supreme Court of Pennsylvania would have placed upon any pertinent Pennsylvania statutes. McClaskey v. Harbison-Walker Refractories Co., 3 Cir., 138 F.2d 493.
The Court will find that on the morning of this accident, the plaintiff Barringer was operating the motor vehicle owned by the plaintiff Stafford, and that at the time of the accident and for the greater part of the period prior thereto, Mrs. Barringer and Mr. and Mrs. Stafford were asleep in the motor vehicle. That when the automobile of Stafford was turned over to Barringer for the purpose of driving from Buffalo to Erie, it was the intention of Stafford to place the sole and absolute control of the motor vehicle in Barringer. That Stafford was justified in relying on the capabilities of Barringer since they were friends and well acquainted; Barringer knew the condition of the highway which was to be traversed; Barringer was accustomed to keeping awake at nights since for some period of time he had worked the night shift at the General Electric Corporation, and it was the intention of Stafford to not remain awake or observe the driving during the period of time that it would be found necessary to make the return trip.
That before the accident, which is now being considered by the Court, a previous accident occurred and, as a result thereof, some confusion existed on the highway at and near the scene of the present accident and at the time the motor vehicle of the Roadway Transit Company reached the point of this accident. That one or more flares were burning when the Roadway Transit Company truck approached; that one of the motor vehicles involved in the first accident, which was a truck, was parked off the highway or on the berm with the left front headlight burning, illuminating the roadway for some distance in the direction of Barringer, the right front headlight of said motor vehicle having been damaged and not being lighted as a result of the accident in which said motor vehicle had been involved. When the truck of the Roadway Transit Company approached the location where this accident occurred, it was traveling at a rate of speed of approximately 5 miles an hour, and continued to be so operated for a period of appriximately one minute. During this period of time the operator of said motor vehicle engaged in a conversation with the driver of one of the motor vehicles involved in the first accident. During part of this period of time, the truck was being driven on the highway, part of the time on the highway and berm, and part of the time on the berm alone. That as a result thereof, conditions existed at the scene of the accident which were unusual, and which created a hazardous condition to other operators of motor vehicles who had occasion to approach said location on the highway from either the direction of Buffalo or Erie. That the tractor-trailer of the Roadway Transit Company was not equipped with rear lamps or lights in accordance with the provisions of the law of the Commonwealth of Pennsylvania.
The Court will first consider whether William Charles Barringer has a right to recover.
The claims of William Charles Barringer must be considered in three different categories or classifications:
I. Claim of William Charles Barringer for personal injuries to himself.
II. Claim of William Charles Barringer under the Wrongful Death Statute.
III. Claim of William Charles Barringer under the Survival Statute.
Individual Claim of Barringer:
In considering the individual claim of William Charles Barringer for personal injuries sustained by him in said accident, it is necessary for the Court to first decide whether William Charles Barringer was guilty of contributory negligence which brought about the accident, and resulting injuries sutained thereby. This is true for even if the Roadway Transit Company was guilty of negligence, Barringer would not be allowed to recover in his own right if he were guilty of any negligence which contributed to the accident.
Contributory negligence should not be declared by the Court, as a matter of law, except in clear cases where reasonable men cannot differ as to the factual situations which exist. Atkinson v. Coskey, 354 Pa. 297, 47 A.2d 156; Tanoredi v. M. Buten & Sons, 350 Pa. 35, 38 A.2d 55.
In this case the Court will find as a conclusion of fact, after consideration of all the testimony in the case, that Barringer was guilty of contributory negligence and, as a result thereof, has no right to recover for the personal injuries sustained by him or any expenses found necessary as a result thereof. Vierling v. Fry, 354 Pa. 66, 46 A.2d 473.
Action Under Wrongful Death Statutes:
The wrongful death and survival actions, although now redressed in one suit or trial, under the rules promulgated by the Supreme Court of Pennsylvania, Pa. R.C.P. 213(e), 12 Purdon's Penna. Statutes Annotated, Appendix, are distinct and separate actions. They are entirely dissimilar in nature and are cumulative but not alternative. The Wrongful Death Statute was unknown to the common law and, therefore, rests upon the basis of legislative enactment. It is governed and regulated by the Act of April 15, 1851, P.L. 669, Sec. 19, as amended by the Act of April 26, 1855, P.L. 309, as further amended by the Act of June 7, 1911, P.L. 678, and the Act of May 13, 1927, P.L. 992, 12 Purdon's Penna.Statutes Annotated, 1601 to 1604, inclusive.
Under the provisions of Pa. R.C.P. No. 2202(a), 12 Purdon's Penna. Statutes Annotated, Appendix, which applies only to wrongful death actions, the action shall be brought by the personal representative of the decedent for the benefit of those persons entitled by law to recover damages for such wrongful death.
The Supreme Court of Pennsylvania has further provided, Pa. R.C.P. 2202(b), 12 Purdon's Penna. Statutes Annotated Appendix, if no action for wrongful death has been brought within six months after the death of the decedent, the action may be brought by the personal representative or by any person entitled by law to recover in such action as trustee ad litem on behalf of all persons entitled to share in the damages.
In other words, during the first six months after death the personal representative of the deceased is the only person entitled to sue under the Wrongful Death Statute; during the next six months either the representative of said deceased or any person entitled to share in the damages may sue, but the action which is first brought bars the institution of any other action.
Under the Wrongful Death Statute the surviving spouse is the individual who is required to institute the action in the manner heretofore set forth for the exclusive benefit of the surviving spouse, children or parents of the decedent, surviving him or her and living at the time the action is instituted, and the amount which is recovered is taken in the same manner as the assets of the decedent's estate are administered in a case of intestacy and are free from all claims or liability to the creditors of the decedent. McFadden v. May, 325 Pa. 145, 148, 189 A. 483.
Another element of damage under the Wrongful Death Statute, which the next of kin is entitled to recover, is the funeral expenses and any other obligations which were paid or incurred as a result of the accident, or such other expenses as could be recovered in an action begun by the injured or deceased person during his lifetime. Act of May 13, 1927, P.L. 992, 12 Purdon's Penna.Statutes Annotated, 1604; Funk v. Buckley & Co., Inc., 158 Pa.Super. 586, 45 A.2d 918; Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659; Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549; Kaczorowski v. Kalkosinski, 321 Pa. 438, 184 A. 663, 104 A.L.R. 1267; Stegner v. Fenton, 351 Pa. 292, 40 A.2d 473.
The fact that a beneficiary is guilty of negligence which contributed to the death of a decedent does not prevent recovery unless he is the sole beneficiary. It does, however, affect the amount recovered. If one of the beneficiaries is guilty of contributory negligence, he is not allowed to benefit by the statute. The amount which he would have received, had he not been negligent, is deducted from the amount recoverable by the dependents as a group; the rest being distributed among the survivors as though the negligent beneficiary did not exist. Since under the facts in this case William Charles Barringer, in the opinion of the Court, was guilty of negligence and he is the sole next of kin, he would not be entitled to recover under the Wrongful Death Statute in the Commonwealth of Pennsylvania, regardless of the negligence of the Roadway Transit Company. Restatement of the Law of Torts, Negligence, Para. 493, p. 2179; Penna. Annotations to the Restatement of the Law of Torts, Vol. 2, Para. 493, p. 285.
The accident occurred on the 21st day of June, 1942, and the cause of action was not filed by William Charles Barringer as trustee ad litem for the heirs of Mary Anne Barringer, his wife, until June 20, 1944. Consequently the matter of damages need not be considered by the Court in the action under the Wrongful Death Statute for the reason that said cause of action is barred by the statute of limitations, which is a period of one year from the date of the accident. Stegner v. Fenton, 351 Pa. 292, 40 A.2d 473.
Action Under Survival Statute:
This action is filed under the provisions of Section 2 of the Act of July 2, 1937, P.L. 2755, Para. 2, 20 Purdon's Penna.Statutes Annotated § 772.
An action brought under the Survival Statute is not a new cause of action at all, but merely continues in the decedent's personal representatives the right of action which accrued to the deceased at common law because of the tort; damages recoverable are measured by the pecuniary loss occasioned to the deceased, and, therefore, to his estate by the negligent act which caused his death. In other words, the action commenced by the representative of the deceased's estate is the same action which the decedent might have commenced and prosecuted if he had lived Stegner v. Fenton, 351 Pa. 292, 40 A.2d 473; Pezzulli v. D'Ambrosia, 344 Pa. 643, 647, 26 A.2d 659.
A suit by a personal representative under the Survival Statute is identical to that which the decedent might have commenced and prosecuted during his lifetime, and, therefore, governed by the same measure of damages. It is but logical, therefore, to conclude, the legislature not having provided to the contrary, that the same limitation as to time when suit may be instituted governs, whether the action be brought by the injured person during his lifetime or by his personal representative under the Act of 1937 after his death; that is, as set forth in the Acts of 1713 and 1895, 12 P.S. §§ 31-34, 'within two years from the time when the injury was done.' Stegner v. Fenton, 351 Pa. 296, 40 A.2d 473.
Since the accident occurred on the 21st day of June, 1942, and the cause of action was filed on June 20, 1944, the proceeding under the Survival Statute was within two years from the time when the accident occurred or when the injury was done.
Under the provisions of Pa.R.C.P. 213(e), 12 Purdon's Penna. Statutes Annotated, Appendix, it is provided that a cause of action for the wrongful death of a decedent and a cause of action for his injuries which survive his death may be enforced in one action, and if ...