of the parties to the agreements, are not opposed to public policy.
Therefore, the court is of the opinion that the release clause is a complete defense to plaintiff's action under the wrongful death statute.
As indicated above, however, the recovery under the survival statute is sought under an entirely different theory. The recovery is for the benefit of the decedents' estates, is measured by the loss to the decedents, is subject to the claims of their creditors, and is to be distributed ultimately to those who would take any other residuary asset of the decedents' estates. The actions under the survival statute are, in effect, a survival of the causes of action which the decedents could have enforced had they survived, and the disabilities of the beneficiaries of the decedents' estates or other third persons do not bar such actions. Thus, if the injuries causing decedents' deaths had resulted from the concurrent negligence of their parents and of the landlord, the negligence of the former would be no bar to an action under the survival statute against the latter, even though the recovery might inure ultimately to the benefit of the parents. See Burns v. Goldberg, supra; Stafford v. Roadway Transit Co., supra; Annotation, 2 A.L.R.2d supra, at pages 811-814.
Therefore, it would seem that the release signed by the tenants cannot bar the actions under the survival statute unless such clause would bar an action on behalf of the minors for their injuries had they survived.
The question whether a release clause in a lease signed by the tenants can effectively bar claims of their minor children was answered affirmatively in McDonough v. Plantholt, 76 Pa.Dist. & Co. R. 119 (C.P., Phila. Co., 1950), involving a release clause similar in all relevant respects to that of the lease here involved. This court, however, is of the opinion that the McDonough case is not in harmony with the law of Pennsylvania and cannot be followed in this case.
To begin with, the language of the release clause is not as clear as it could be that liability to anyone other than the tenants was intended to be released. The clause provides that the tenant agrees to release the landlord from liability for injuries to members of the household; there is no language by which the members of the household agree to anything, and even the tenants do not agree to release the landlord from liability 'to members of the household', or 'to any person,' for injuries sustained by members of the household. A not unnatural construction of the clause may be that the tenants have agreed to release the landlord from liability to themselves for their own losses arising from injuries sustained by members of their household, but that they have not agreed to release the claims of any one other than themselves. Cf. Lerner v. Heicklen, 1926, 89 Pa.Super. 234, 236. In this connection it must be remembered that, in case of doubt or uncertainty as to the meaning of the lease provision, it must be construed against the lessor and in favor of the lessee. Darrow v. Keystone 5, 10, 25, $ 1.00 Stores, Inc., 1950, 365 Pa. 123, 74 A.2d 176; Baldwin v. McEldowney, 1936, 324 Pa. 399, 188 A. 154.
If the release clause is not to be thus limited in its interpretation, its validity with respect to the claims of the minor members of the tenants' household is extremely doubtful. While it is true that the appellate cases relied on in the McDonough case, supra, have held that such release clauses are valid so far as they relate to the parties thereto, no case which the court has found, aside from the McDonough case, indicates that a release clause may be effective against third parties who are minors. There are many contract provisions which are valid and not opposed to public policy as between adult parties thereto; whether such provisions are effective as to minors who are not parties to the contract is an entirely different question. Thus a release of a present claim for a minor's past injuries may be ineffective although executed by the minor and/or by his natural guardian, even though such a release is, of course, valid and effective when executed by an adult for his own injuries. American Mutual Liability Ins. Co. v. Volpe, 3 Cir., 1922, 284 F. 75; Campbell v. Sears, Roebuck & Co., 1932, 307 Pa. 365, 161 A. 310; Brill v. Brill, 1925, 282 Pa. 276, 127 A. 840; Hollinger v. York Rys. Co., 1909, 225 Pa. 419, 74 A. 344; Haines v. Fitzgerald, 1933, 108 Pa.Super. 290, 165 A. 52. The policy of the Pennsylvania law of protecting minors is also illustrated by the requirement of court approval for the compromise of litigation to which a minor is a party. 20 P.S. § 1072; Pa.R.Civ.P. 2039, 2206.
The court is of the opinion that the release clause in question did not and could not operate as an effective release of the claims of plaintiff's minor children, under the law of Pennsylvania as well as other jurisdictions. See Chicago, R.I. & P.Ry. v. Lee, 8 Cir., 1899, 92 F. 318; Annotation, 13 A.L.R. 402, 404-405 (1921). Therefore, defendant's motion with respect to plaintiff's claims under the survival statute will be denied.
An appropriate order is entered.
© 1992-2004 VersusLaw Inc.