Appeals, Nos. 14, 15, 16 and 19, May T., 1956, from order of Court of Common Pleas of Dauphin County, June T., 1953; Nos. 447 and 461, in cases of Vincent G. Fisher v. Allen J. Dye; Allen J. Dye, Administrator of estate of Leticia M. Dye, v. Vincent G. Fisher and Allen J. Dye; and Allen J. Dye v. Vincent G. Fisher. Order affirmed. Trespass for property damage and personal injuries, and cross suit by defendant for property damage and personal injuries and, as administrator, under Wrongful Death Act and Survival Act. Before KREIDER, J. Verdict for defendant in suit of Fisher v. Dye; verdict for defendant in suit of Dye in his own right against Fisher; verdict for defendant and additional defendant in suit of Dye as administrator against Fisher as defendant and himself as additional defendant. Motion by Dye as administrator for new trial granted; motion of Fisher for new trial in his action against Dye granted; new trial granted by court of its own motion in case of Dye v. Fisher. Fisher and Dye, respectively, appealed.
W. E. Shissler, with him James H. Stewart, Jr., and Nauman, Smith, Shissler & Hall, for Vincent J. Fisher.
James K. Thomas, with him Arthur H. Hull, and Hull, Leiby & Metzger, for Allen J. Dye.
Macey E. Klein, with him Solomon Hurwitz, Irwin Benjamin, and Hurwitz, Klein, Meyers & Benjamin, for Allen J. Dye, Administrator.
Before Stern, C.j., Jones, Bell, Chidsey and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
Following the not unusual pattern in automobile collision cases the stories told by the parties here involved are hopelessly at variance with one another. According to Vincent G. Fisher, he was operating a Mercury Coupe on May 3, 1953, at about 2:15 A.M. eastwardly on Route 22 (Jonestown Road) near Harrisburg; as he approached 39th Street a Dodge Sedan driven by Allen J. Dye in which his wife Leticia M. Dye was a passenger, and which had been proceeding westwardly on Route 22, made a diagonal left-hand turn into 39th Street when Fisher was only 10 to 30 feet away and without Dye having given any warning of his intention so to do; although Fisher tried to apply his brakes he was unable to avoid the collision. Dye's story, on the other hand, was that he stopped briefly at the 39th Street intersection before turning; he signaled his intention to turn, looked to the west and, seeing no car approaching within a distance of up to 700 feet, he then proceeded, with the result that his car was struck after its front wheels had already passed the south edge of the pavement of the eastbound lane and were on the berm of the road.
Fisher instituted suit against Dye to recover for the damage to his car and for personal injuries. Dye, both in his own right and as administrator of the estate of his wife who had been killed in the collision, filed a cross suit against Fisher, seeking recovery for property damages and for personal injuries and, as administrator, for damages under the Wrongful Death Act of April 15, 1851, P.L. 669, Section 19, as amended, and the Survival Act of July 2, 1937, P.L. 2755, Section 2, re-enacted in the Fiduciaries Act of April 18, 1949, P.L. 512, Sections 601, 603. The suit of Dye in his own right was severed from his suit as administrator and he was joined as an additional defendant in the action
brought by him as the administrator of his wife's estate. The three actions were then consolidated for trial. In the suit of Fisher v. Dye the jury found for the defendant; in the suit of Dye in his own right against Fisher the jury likewise found in favor of the defendant; in the suit of Dye as administrator against Fisher as defendant and himself as additional defendant the jury found in favor of both the defendant and the additional defendant. The jury, therefore, must have concluded that Fisher and Dye had both been negligent.
The principal issue on the present appeals arises from the fact that in the survival action brought by Dye as administrator the trial judge instructed the jury that if they found that Leticia M. Dye at the time of her death had no creditors, that her husband was her sole heir, that Dye was negligent, and that his negligence contributed in any degree to the happening of the accident, he could not, as administrator of his wife's estate, recover any damages in the action. This instruction was based on the theory that if Dye had helped to bring about his wife's death he ought not to be allowed to profit thereby. Subsequently, however, the court en banc came to the conclusion that, since neither the Survival Statute nor the Intestate Act contained any provision depriving a husband of the right to share in his wife's estate even if the fund for distribution had come into being as the result of his own negligent act, the court should not ...