The Court and counsel have made a complete and exhaustive research of the authorities on the subject. Neither the Supreme Court of Pennsylvania, the United States Court of Appeals for the Third Circuit, nor the Supreme Court of the United States have ruled on this interesting and provoking issue.
The various ramifications and bases of damages underlying the two statutes have received detailed treatment among the following cases: Murray v. Philadelphia Transportation Co., 359 Pa. 69, 58 A.2d 323; Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659; Pantazis v. Fidelity & Deposit Co. of Maryland, 369 Pa. 221, 85 A.2d 421; Siidekum v. Animal Rescue League of Pittsburgh, 353 Pa. 408, 45 A.2d 59; Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549; Stafford v. Roadway Transit Co., 3 Cir., 165 F.2d 920. But none have ruled specifically on the point herein raised.
It is my judgment that the two statutes are distinct and separate, and the elements of recovery under one may not arbitrarily be conferred upon the other. For, to assume otherwise, would destroy, by judicial fiat, the significance and affect of the Wrongful Death Statute. Thus, the running of the statute of limitations, under the Wrongful Death Statute, limited to one year in Pennsylvania, could be evaded with complete abandon, by claiming substantially the identical damages under a survival action, under which latter act the statute runs for a two year period.
I do not believe that the legislature intended the provisions of the Wrongful Death Statute to be illusory and perfunctory.
The view I have taken is buttressed by two recent decisions of the United States Court of Appeals for the Third Circuit. In the case of Wells v. Simonds Abrasive Company, 195 F.2d 814, the appellate court holds:
'That actions under the Death and Survival Acts 'are entirely dissimilar in nature'; under the Death Act the cause of action '* * * is for the benefit of certain enumerated relatives of the person killed by another's negligence; the damages recoverable are measured by the pecuniary loss occasioned to them through deprivation of the part of the earnings of the deceased which they would have received from him had he lived'; and that the cause of action under the Survival Act 'merely continues in his personal representatives the right of action which accrued to the deceased at common law because of the tort; the damages recoverable are measured by the pecuniary loss occasioned to him, and therefore to his estate, by the negligent act which caused his death."
and in the case of Patton v. B. & O.R. Co., the appellate court holds:
'In an action for wrongful death the recovery, if any, passes to a limited group of beneficiaries as defined by statute. The recovery is apportioned among the beneficiaries in accordance with the intestate laws of Pennsylvania without regard to a decedent's will and the sum recovered is not available to creditors of the decedent. See the provisions of the Act of April 26, 1855, P.L. 309, § 1, as amended by the Act of April 1, 1937, P.L. 196, § 1, 12 P.S.PA. § 1602. In a survival action the recovery enures for the benefit of the descendant's estate. Not only is is available to creditors, but likewise it passes in applicable cases to legatees pursuant to will.'
I, therefore, conclude that in a survival action alone the measure of damages must be calculated on what the earnings of the deceased person would have been during the period of his life expectancy, taking into consideration reduction or possible cessation thereof upon the approach of the infirmities of old age, reduced to its present worth, to be deducted therefrom the probable cost of his maintenance as well as the probable cost of the maintenance of his widow and child.
To conclude otherwise would permit the plaintiff to recover indirectly what the law provides he could not recover directly.
This unfortunate situation, as far as the heirs of the deceased are concerned, rests with the legislative rather than the judicial branch of our government.
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