there had to be separate verdicts in the wrongful death action and in the survival action, counsel for the plaintiff and the defendant made these statements:
'Mr. Richter: I don't think it would make any difference if in bringing in their verdict they rendered one verdict instead of two. Do you have any objection?
'Mr. Axelroth: I think that is within the discretion of the court.'
Since the date of the trial the Court of Appeals of the Third Circuit in Patton v. Baltimore & O.R. Co., 197 F.2d 732, at page 744, has decided that it is necessary that there be separate verdicts in some cases where wrongful death and survival actions are tried together, saying:
'At the new trial separate verdicts may be necessary. 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 decedent's estate. Not only is it available to creditors, but likewise it passes in applicable cases to legatees pursuant to will. * * *'
In the present case, with or without the withdrawal of the claim for the present worth of the decedent's probable future retained net earnings, both the wrongful death and the survival causes of action were before the jury. Plaintiff has filed an affidavit, not disputed by a counter-affidavit, showing that there are no creditors of the estate and that the entire estate goes to the widow, who as executrix is the plaintiff in the case. It is true that the proceeds of a death action are distributed in accordance with the intestate laws of Pennsylvania unaffected by claims of creditors or legatees, Patton v. Baltimore & O. R. Co., supra. It is true also that from the affidavit of plaintiff and the record in the case it appears that the decedent and his wife, the plaintiff, have three children. Since children share their father's estate with their mother under the intestate laws of Pennsylvania, it might appear that in the present case there must be separate verdicts in the wrongful death action and in the survival action in order to determine in how much of the total verdict the children will share. But this is not the case. Although the Pennsylvania Wrongful Death statute states, 12 P.S. § 1602, that 'the sum recovered shall go to them (the designated beneficiaries in the proportion they would take * * * in case of intestacy', the Pennsylvania decisions (which control this court in its interpretation of the statute) hold that where a husband dies leaving a dependent widow and non-dependent children the widow takes the entire proceeds of a wrongful death action to the exclusion of the children. Lewis v. Hunlock's Creek & Muhlenberg Turnpike Co., 203 Pa. 511, 53 A. 349. See also Armstrong v. Berk, D.C., 96 F.Supp. 182. The evidence in the present case is not as clear as it might be, but it appears to me, and I take it to be a fact, that all three of the decedent's children at the time of his death were mature, self-supporting and in no way dependent upon the decedent. In view of this, all the proceeds of the case from both the wrongful death and the survival actions, will go to the widow and there is no need for separate verdicts.
I am overruling without further discussion all of Groves' contentions in reference to its may assigned reasons for a new trial and for judgment n. o. v.
And now, November 6, 1952, in accordance with the foregoing opinion, it is Ordered that the motion of S. J. Groves & Sons Co., Inc., Defendant, for judgment in its favor and its alternative motion for a new trial be and the same are hereby denied.
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