of the Legislature should be corrected by the Legislature, but it is also true that a court will not construe legislation in such a way that an inequitable result will follow, if a construction can be found which will bring about a reasonable and fair result.
Under the second possible solution, the Court, at the time of the trial, can refuse to permit anyone to prove any damage (except the comparatively small cost of the funeral, the medical and related services) on the theory that the children having suffered no loss can recover nothing and, because of the terms of the Intesta Intestate Act, the mother is not entitled to recover anything. This would permit the tort-feasor to go free of liability as far as the wrongful death action is concerned, except for the burial, medical and related expenses. This solution, also, is so manifestly unfair that it should not be accepted.
The third solution is to permit the mother to prove her pecuniary loss at the trial, and then to award to her whatever sum the jury or the Court has allowed her to reimburse her for her loss. This is the only equitable solution of the problem and the only fair interpretation of the Act.
On the question of whether or not the equities of each situation should be considered in construing the Act, the case of McAlister v. Stevens, Com Pleas Washington County 1941, 41 Dist. & Co. R. 612 is interesting. In the McAllister case, the decedent left a widow, whom he was supporting, and two children, whom he was not supporting. The Court refused to permit the non-supported children to share in the proceeds and awarded all the proceeds in equal shares to the widow and the supported child. The decision was made after the Gaydos case, supra, and, in refusing to permit the non-supported children to share, it was contrary to the statements made by the Pennsylvania Supreme Court in the Gaydos and other cases, but, considering its facts and the court's decision, it is an authority for the proposition that the equities should be considered in the distribution
of the proceeds of wrongful death actions.
It must be remembered that the Act says: 'The persons entitled to recover * * * shall be * * * or parents * * * .' That is a definite and clear statement giving a parent a right to recover. This clear right should not be taken away by a later provision of the Act, unless the later provision clearly does this. In my opinion, the later provision in reference to the Intestate Act, viewed in the light of the facts of the present case, clearly does not take away a parent's right to recover and, therefore, the mother in the present case should be permitted to share in the proceeds.
A case closely analogous to the present case is Poff v. Pennsylvania R. Co., 327 U.S. 399, 66 S. Ct. 603, 90 L. Ed. 749, which was a suit under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 which provides that:
'Every common carrier by railroad * * * shall be liable in damages to any person suffering injury while he is employed by such carrier * * *, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death'.
It will be noticed that the Federal Employers' Liability Act, unlike the Pennsylvania wrongful death act, creates preferences among the classes entitled to share in the proceeds of a unit, but provides that where there are no preferred classes the proceeds are to be distributed among the next of kin of the decedent.
In the Poff case the decedent left no members of a preferred class, that is, no widow, children or parents. His nearest surviving relatives were two sisters and a nephew, whom he was not supporting, and a cousin, whom he was supporting. Under the terms of the Pennsylvania Intestate Act (which governed, since the decedent was domiciled in Pennsylvania) a cousin cannot inherit when sisters and a nephew survive a decedent, 20 P.S. §§ 62, 63, 66, 67. In the Poff case and the present case the situations are similar in that in both cases distribution must be made in accordance with the terms of the Intestate Act.
In both cases dependency must be shown before a relative can recover, and in both cases there are supported relatives who, under the terms of the Intestate Act, cannot inherit because of the existence of non-supported relatives who inherit to the exclusion of the supported relatives. The United States Supreme Court permitted the cousin to recover,
saying, 327 U.S. at pages 401, 402, 66 S. Ct. at page 605, 90 L. Ed. 749: 'We are not warranted in treating as an antecedent class the nearer next of kin who are not dependent. That would be to rewrite the statute. Congress has created three classes, not four or more. Yet to hold that the existence of nearer next of kin who are not dependent bars recovery by more remote next of kin who are dependent is to assume that the former constitute a preferred class. Congress, however, placed all next of kin in one class. * * * Moreover, when Congress made the widow preferred over the parents and both the widow and parents preferred over the next of kin, it barred the deferred classes from recovering by creating a preferred class which could recover. Yet if respondent's theory is adopted, the nearer next of kin who are not dependent are treated as a preferred class not for the purpose of allowing them to recover but to defeat a recovery by all next of kin.'
An order will be entered designating the mother of the decedent as a person entitled to share in the proceeds of the wrongful death action to the extent of $ 2,000.
Since it is my opinion that the minors in this case have no interest in the proceeds of the wrongful death action, it would appear that court approval of the compromise settlement is not needed. See Hewitt v. Masser Motor Express, 43 Dist. & Co. R. 514. However, since all the parties desire it, an order will be entered approving the compromise settlement. Under the facts of the accident, which I have learned both from the stipulation of counsel and from information given to me at the pre-trial conference, it is my opinion that the compromise settlement is a fair one.