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ARMSTRONG v. BERK

January 17, 1951

ARMSTRONG, Adm'r
v.
BERK et al.



The opinion of the court was delivered by: GRIM

A. Millard Armstrong was appointed administrator of the estate of said Harry H. Parr, Jr., on June 9, 1949, by the Register of Wills of Philadelphia County, Pennsylvania. He has filed a diversity action in this court against all the parties in the accident under the provisions of the Pennsylvania wrongful death statute and under the provisions of the Pennsylvania survival of actions statute. With the approval of the guardian of the minor children, *fn2" he has entered into an agreement with the defendants in the case, subject to the approval of this court, to settle and compromise the suit (both the death action and the survival action) for the sum of $ 13,500. He has petitioned this court to approve the settlement, *fn3" and to make an order designating the persons entitled to share in the proceeds of the suit. *fn4"

 Counsel for the guardian of the minor children contends that all the proceeds of the wrongful death action (after the necessary and designated expenses) should go to the guardian. Counsel for the mother of the decedent contends that the mother should share in the proceeds of the wrongful death action. These two contentions create the principal issue now before this court. It has been agreed by all the parties that the mother's share of the proceeds, if any, should be $ 2,000.

 The question in the case is this: A man dies as a result of a tortious act, leaving to survive him two children, both of whom, at the time of the death, were living apart from the decedent, were receiving no support from him and had no reasonable expectation of support from him. He also is survived by his mother, who, at the time of his death, lived with him and was receiving support from him. In view of the Intestate Act, which provides that where children and a parent survive a decedent the children take the whole estate to the exclusion of the parent, should the children in this situation receive the entire proceeds of a suit for wrongful death?

 The Pennsylvania wrongful death act provides 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 the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy * * * .' *fn5"

  Ever since the passage of the wrongful death statute the courts have limited the right to prove damages to persons who have suffered pecuniary loss as a result of the death, the pecuniary loss being that loss of support which the persons mentioned in the wrongful death statutes have sustained. *fn6" Since the children in the present case have sustained no loss of support, it is obvious that they could not prove any damage in a trial of the case. On the other hand, the mother was receiving support from her son and definitely has sustained a pecuniary loss, but under the terms of the Intestate Act a mother inherits nothing from her son's estate when children of the son survive him.

 It is well settled that an action may be brought in a Federal District Court under the Pennsylvania wrongful death statute, but where the accident has occurred in Pennsylvania a District Court situated in Pennsylvania must follow Pennsylvania decisions construing the Act. Suders v. Campbell, D.C.M.D. Pa. 1947, 73 F.Supp. 112.

 Despite the fact that the wrongful death statute has been in existence in Pennsylvania for 100 years, there are no cases directly in point with the present case. Consequently, it is necessary to analyze the various situations and decisions which have arisen under the Act to see whether the decisions have developed a rule of construction from which the answer to the question in the present case can be discovered.

 Where a decedent is survived by a widow and/or children, all of whom were supported by the decedent, it is clear that they all will share in the proceeds of the suit in such proportion as they would inherit under the Intestate Act.

 Where there is a spouse who was being supported by the decedent and children who were not, the terms of the Intestate Act are disregarded and the children cannot share. Lewis v. Hunlock's Creek & M. Turnpike Co., 1902, 203 Pa. 511, 53 A. 349; Leiby v. Hanlon, Com. Pleas Mercer County 1935, 24 Dist. & Co. R. 508.

 Where there are children who were being supported by the decedent and a spouse who was not being supported by the decedent, the terms of the Intestate Act will be disregarded and the children will take the entire recovery to the exclusion of the spouse. There is no case directly in point on this situation, but the Lewis case, supra, should control it. The facts in the Lewis case are the converse of the facts in this situation, but the problem in both situations is the same. In the Lewis case, there was a spouse who was being supported and children who were not; in the situation now being considered, there is a spouse who was not being supported and children who were being supported. The same reasoning should apply to both situations and the same conclusion should follow, the conclusion being that when two classes of relatives are involved, one of which was suffered a pecuniary loss and the other of which has not, the Intestate Act is disregarded and the loss-suffering class takes to the exclusion of the non-loss-suffering class. Of course, there is a slight distinction between the facts of the Lewis case and the facts of the situation now being considered, the distinction being that the Lewis case involves a supported class which is listed ahead of the non-supported class in the wrongful death act, while in the situation now being considered the supported class is listed after the non-supported class in the wrongful death act. This distinction, however, is unimportant because, in my opinion, the order in which the various classes have been listed in the wrongful death act was not set up as a method of creating preferences among classes.

 Where there is a spouse who was being supported by the decedent, and there were no children, but there was a parent who was not being supported, the Intestate Act is disregarded and the widow takes the entire proceeds to the exclusion of the parent. Lehigh Iron Co. v. Rupp, 1882, 100 Pa. 95. It should be remembered that under the Intestate Act, where there are no children, a parent can share in his child's estate, along with the child's widow, subject, however, to the widow's prior claims to her widow's exemption and her widow's allowance.

 Where there are children, some of whom were being supported by the decedent and some of whom were not, the terms of the Intestate Act are followed and all the children share in the proceeds, despite the fact that in this situation children share in the recovery who have suffered no pecuniary loss, and their recovery takes from children, who have suffered loss, part of the sum which has been awarded them to make good their loss. In Gaydos v. Domabyl, 1930, 301 Pa. 523, at page 532, 152 A. 549, 552, the Pennsylvania Supreme Court has said: 'All the children, under the act, should sue as parties plaintiff *fn7" even though at trial a pecuniary loss to one child only can be shown. * * * Where all sue and less than that number have been damaged, the verdict must be confirmed to the loss shown by those damaged, even though the verdict and distribution of the amount, under the act, must be made among all the children.' (Emphasis supplied.) See also North Penn. R. Co. v. Robinson, 44 Pa. 175.

 From the decisions it is difficult to arrive at any general rule, particularly because in so many cases the problem under consideration was the identity of the proper party plaintiff rather than the problem of distribution, but it appears that this rule emerges: Where any one of a class has suffered pecuniary loss the Intestate Act will be followed and all the members of the class will share equally despite differences in pecuniary loss, *fn8" but if there is a class, none of whose members can show pecuniary loss, the class will be excluded from sharing in the ...


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