The opinion of the court was delivered by: GOURLEY
This action is based on negligence. A most extensive pre-trial has been held. The First National Bank in Greensburg has brought suit as Administrator of the Estate of Grady M. Griffin, whose demise it is alleged was caused in a truck accident within the jurisdiction of this court.
In Pennsylvania, where death occurs as the result of an automobile accident, there are two rights of action against the tort-feasor. One is provided by the Act of 1855, P.L. 309; 12 P.S. § 1602, and is known as 'Wrongful Death Statute.' This Act gives to certain surviving relatives the right to recover for the pecuniary loss to them caused by the death. In addition, however, there is another death statute in Pennsylvania, often referred to as the 'Survival Statute,' namely, the Act of July 2, 1937, P.L. 2755; 20 P.S. § 772, which amended Section 35(b) of the Fiduciaries Act of 1917, P.L. 447, and is now incorporated in Sections 601 and 603 of the Fiduciaries Act of 1949, P.L. 512; 20 P.S. §§ 320.601 and 320.603.
The statute of limitations under the Wrongful Death Statute is one year, and under the Survival Statute is two years. Stegner v. Fenton, 351 Pa. 292, 40 A.2d 473.
An identical action was brought in the Court of Common Pleas of Westmoreland County, Pennsylvania, at No. 832 August Term, 1949, under both the Wrongful Death and Survival Statutes. On motion of defendants, a compulsory nonsuit was entered by the said court.
By reason of the running of the statute of limitations under the Wrongful Death Statute, the proceeding before this court is limited to an action under the Survival Statute.
Under the Survival Statute in Pennsylvania it is provided that when one wrongfully killed has brought no suit during his lifetime, his personal representative may bring an action on behalf of his estate. Under this statute the action can be brought within two years from the date of the accident. Section 2 of the Act of July 2, 1937, P.L. 2755; 20 P.S. § 772, which amended Section 35(b) of the Fiduciaries Act of 1917, P.L. 447, and is now incorporated in Sections 601 and 603 of the Fiduciaries Act of 1949, P.L. 512; 20 P.S. §§ 320.601 and 320.603; Stegner v. Fenton, supra.
The Court is confronted with the novel issue of determining the measure of damages which can be recovered under the Survival Statute, where no cause of action is pending due to the running of the statute of limitations under the Wrongful Death Statute.
Plaintiff contends that the personal representative under the Survival Statute may recover the earnings of the deceased person during the period of his life expectancy, less the probable cost of his maintenance, reduced to its present worth. Counsel rejects the right to deduct therefrom the normal expenditures which the deceased would incur for the maintenance of his widow and child.
Defendants urge upon the court that damages under the Survival Statute may not encompass the normal cost for care of the widow and child; that such damages may be awarded only by invoking the Wrongful Death Statute under which provision surviving relatives may recover for the pecuniary loss caused them by the death.
The problem resolves itself into the issue of whether the damages recoverable under the Wrongful Death Statute, or are they complementary and interrelated, so that the elements of recovery under the Wrongful Death Statute may be incorporated into and commingled with the elements of recovery under the Survival Statute, when the action is brought under the Survival Statute alone.
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 ...