Appeal, No. 21, March T., 1952, from judgments of Court of Common Pleas of Fayette County, March T., 1950, No. 658, in case of Bernard Rodney, Admr., Estate of Rose Staman, also known as Rose R. Staman, v. Harry H. Staman, Exr., Estate of Paul Staman, deceased. Judgments affirmed; reargument refused June 24, 1952.
H. E. McCamey, with him Henry R. Beeson, Higbee, Lewellyn & Beeson, J. Lawrence McBride and Dickie, McCamey, Chilcote, Reif & Robinson, for appellant.
David E. Cohen, with him Milton D. Margolis, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE JONES
While Paul Staman and his wife were travelling by automobile in Ohio, they met with an accident as a result of which both were thrown from the machine and killed instantly. The automobile was owned by the husband and the Stamans were its only occupants. The administrator of the wife's estate, on behalf of two surviving children, sued the husband's estate in the Court of Common Pleas of Fayette County, Pa., for damages for their mother's wrongful death. At trial, the jury returned verdicts for the plaintiff whereon judgments were entered after the court en banc had refused the defendant's motions for judgments n.o.v. and for a new trial. This appeal by the defendant followed.
On the question of liability, the appellant contends (1) that the action is not maintainable under the Wrongful Death Statute of Ohio, (2) that there was no proof that the husband was driving the car at the time of the accident and (3) that the evidence of wilful or wanton misconduct was insufficient under the Ohio decisions to carry the case to the jury. The appellant also assigns several alleged trial errors. The substantive rights of the parties are, of course, to be determined according to the law of Ohio -- the place of the alleged tort: Mackey v. Robertson, 328 Pa. 504, 506, 195 A. 870.
The Ohio Wrongful Death Statute (7, Page, Ohio General Code Annotated, Sec. 10509-166) declares that the act causing the death must be "... such as would have entitled the party injured to maintain an action and recover damages in respect thereof, if death had not ensued...." The appellant contends that this requirement applies to the person of the deceased for whose death the action is brought as well as to the alleged tortious act and that, consequently, the personal
disability arising under Ohio law from the marital relationship between the deceased and the tort-feasor bars an action for the wife's wrongful death as effectively as would the absence of a breach of duty owed by the defendant or the presence of contributory negligence on the part of the deceased. We cannot accept this contention. There are no Ohio decisions on the particular point, but it is well settled in that State that its Wrongful Death Statute gives rise to an independent action accruing only upon death: Mahoning Valley Railway Co. v. Van Alstine, 77 Ohio St. 395, 406 et seq., 83 N.E. 601; May Coal Co. v. Robinette, 120 Ohio St. 110, 165 N.E. 576. In fact, the action is considered so unrelated to the deceased as to be unaffected by a release given by him before death: Phillips v. Community Traction Co., 46 Ohio App. 483, 189 N.E. 444. The independence of an action is itself ample justification for not barring a suit for wrongful death because of personal relationship between the deceased and the tort-feasor.
In Pennsylvania, where the right of action is deemed derivative, a suit for wrongful death is not barred because of the given relationship. While our Wrongful Death Act*fn1 does not contain the above-quoted words of the Ohio Statute, which were taken directly from Lord Campbell's Act (9 and 10 Vict., c. 93, Sec. 1), "... we, in common with most jurisdictions, have hitherto interpreted our statute as if worded in the same manner...": Kaczorowski v. Kalkosinski, 321 Pa. 438, 440, 184 A. 663. After noting in the Kaczorowski case that "We have announced the principle that the statutory action is derivative because it has as its basis the same tortious act which would have supported the injured party's own cause of action...", we immediately went on to
describe the source of the action as follows: "Its derivation... is from the tortious act and not from the person of the deceased, so that it comes to the parties named in the statute free from personal disabilities arising from the relationship of the injured party and tort-feasor." Since suit for wrongful death is not barred because of personal relationship where the action is held to be ...