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FISHER v. HILL (06/27/51)

June 27, 1951

FISHER, APPELLANT,
v.
HILL, APPELLANT



Appeals, Nos. 9 and 11, Jan. T., 1951, from decree of Court of Common Pleas of Delaware County, June T., 1948, No. 297, in case of George E. Fisher, Jr., individually and as administrator, Estate of George E. Fisher, 3rd, Deceased, v. William H. Hill. Decree affirmed.

COUNSEL

D. Malcolm Hodge, with him E.P. Balderston, Jr., and Hodge, Hodge & Balderston, for defendant.

Paul C. Van Dyke, with him James A. Cochrane, for plaintiff.

Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Chidsey

[ 368 Pa. Page 54]

OPINION BY MR. JUSTICE CHIDSEY

This is an action by George E. Fisher, Jr., individually and in his own right, and as administrator of the

[ 368 Pa. Page 55]

    estate of George E. Fisher, 3rd, deceased, against William H. Hill, under the Wrongful Death and Survival Statutes, to recover damages occasioned by the death of his son, George E. Fisher, 3rd. These appeals are from the decree of the court below holding that by reason of a prior suit (Fisher v. Hill, 362 Pa. 286, 66 A.2d 275) wherein Fisher sued as administrator of his wife's estate and individually and in his own right under the Survival and Wrongful Death statutes respectively, no recovery could now be had under the Wrongful Death Act, but an action could be maintained as administrator of his deceased son's estate. The court held that Fisher was required to sue in a single action for all damages claimed individually and in his own right for the deaths of his wife and son.

The tractor-trailer owner by William H. Hill and the automobile owned by George E. Fisher, Jr., and operated by his wife, Levinia Florence Fisher, were involved in an accident on December 1, 1947, as a result of which Mrs. Fisher was killed instantly and George E. Fisher, 3rd, the son who was a passenger in the Fisher vehicle, sustained serious bodily injuries from which he died the following day. Fisher instituted suit against Hill on February 20, 1948, suing as administrator of the estate of his deceased wife to recover damages for her death under the Survival statute, and individually and in his own right to recover damages for her death under the Wrongful Death Act and for damages done to his automobile. He was the sole person entitled to recover under the Wrongful Death Act. The cases were tried before a jury which returned verdicts in his favor as administrator in amount of $100.00, and individually and in his own right in amount of $10,000.00. The judgments were affirmed by this Court on May 23, 1949 (Fisher v. Hill, supra). These judgments were paid and the records marked satisfied on June 9, 1949.

[ 368 Pa. Page 56]

The instant proceedings were instituted on June 25, 1948, to recover damages by reason of the death of the son under the Survival and Wrongful Death Statutes. An amended complaint was filed on September 29, 1948, and served upon defendant's attorney the same day, endorsed with a notice to plead within twenty days from the date of service. Defendant, on July 28, 1949, filed a responsive pleading entitled "Defendant's Answer to Amended Complaint and New Matter". Under "New Matter" defendant averred that the first suit was an "estoppel and bar" to the present suit. Plaintiff, on August 4, 1949, filed preliminary objections in the form of a motion to strike off defendant's answer alleging that (1) the answer and new matter were not timely pleaded, and (2) the former suit was not res judicata as to the second suit.

(1). Pennsylvania Rules of Civil Procedure Nos. 1026 and 1361, in substance, provide that every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading if notice to plead is endorsed thereon. The word "shall" is not mandatory in the sense that it admits no exception unless an extension of time is secured by agreement of the parties or by leave of court as provided for in Rule No. 1003. Neither under the Practice Act of 1915 where the word "shall" was used nor under the present Rules of Civil Procedure has this Court regarded such provisions as to pleading so mandatory as not to permit exceptions where justice requires. "Procedural rules are not ends in themselves but means whereby justice, as expressed in legal principles, is administered. They are not to be exalted to the status of substantive objectives. It is for ...


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