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CURNOW v. WEST VIEW PARK CO.

August 9, 1963

William J. CURNOW, Administrator of the Estate of Martha M. McCoy, Deceased, Plaintiff,
v.
WEST VIEW PARK COMPANY, Defendant



The opinion of the court was delivered by: DUMBAULD

This action was brought by an out-of-state administrator, appointed by the Register of Wills of Allegheny County, Pennsylvania, on behalf of the estate of and on behalf of the five children and husband of Martha M. McCoy, who met her death as the result of being struck by the collapse of an aerial rig in connection with an acrobatic act at an amusement park operated by defendant. The action was brought under the Pennsylvania Survival Act (20 P.S. §§ 320.601 and 320.603) and Wrongful Death Act (12 PS. §§ 1601 and 1602). It is provided in 12 P.S. § 1601 that 'Whenever death shall be occasioned by unlawful violence or negligence * * * the personal representatives may maintain an action for and recover damages for the death thus occasioned.'

A duly appointed administrator would appear to fall within the category of 'personal representatives'. This interpretation is confirmed by the terms of Rules 2201 and 2202 Pa.R.C.P., 12 P.S. Appendix and Rule 17 F.R.Civ.P. It is conceded that the administrator may properly bring the survival action on behalf of the estate of the deceased.

 But it is contended that there is a distinction between the status of the administrator under the Survival Act and under the Wrongful Death Act, where the proceeds are held for the benefit of the specifically enumerated relatives in the classification established by 12 P.S. § 1602. We are unable to comprehend or perceive the force of the distinction thus asserted. A duly appointed administrator is acting in his same official capacity whether the proceeds collected from a law suit enure to the benefit of the decedent's heirs under intestate laws, or creditors of the estate, or beneficiaries specified in an annexed will (in the case of an administrator cum testamento annexo), or, as here, to the benefit of a specifically designated category of statutory beneficiaries.

 Consequently, much as we would rejoice to see the docket of the federal courts diminished by the elimination of collusive appointments of foreign administrators (or even, as has often been urged, by the elimination of diversity jurisdiction entirely by Congressional action), *fn1" we are unable to see why this case does not fall within the principle enounced in Corabi v. Auto Racing, Inc., 264 F.2d 784, 788, 75 A.L.R.2d 711 (C.A. 3, 1959). See also Fallat v. Gouran, 220 F.2d 325, 326 (C.A. 3, 1955). This principle does not appear to be weakened by the doubtful status of a guardian ad litem as discussed in Berkowitz v. Philadelphia Chewing Gum Corp., 303 F.2d 585, 587-588 (C.A. 3, 1962). Accordingly, we feel that it is clear that this Court has diversity jurisdiction and that, there being no jurisdictional defect, Rule 50(b) F.R.Civ.P. forecloses the granting of defendant's motion for judgment non obstante veredicto by reason of failure to make a motion for a directed verdict at the close of all the evidence.

 At the trial defendant conceded liability and the issue of damages only was considered by the jury. *fn2" A verdict was returned in the amount of $ 10,000.00 in the Survival Act action and of $ 90,000.00 in the Wrongful Death Act action. Defendant now contends that the award of $ 10,000.00 should be set aside or reduced upon the ground that there was no evidence of conscious pain or suffering endured by plaintiff after the accident and before her death. However, the testimony of Father Lawrence O'Connell, a Roman Catholic priest who administered the last rites to decedent was sufficient to sustain the jury's finding. This testimony reads as follows:

 'Q At the time that you saw her, what was her condition?

 'A She had a severe open gash on the left side of her head. She was bleeding profusely from the mouth and ears and from this wound in her head. And, her one eye was practically closed.

 'Q When you found her in this state, Father, what did you then do?

 'A My first administration was, I said, 'Martha, this is Father O'Connell. You have met with a very serious accident, and are very seriously hurt.'

 'Q Did she make any reply?

 'A Well, I began with an Act of Faith.

 'MR. JACOBSON: No, Father. The question was, Did she make any reply.

 'THE WITNESS: She ...


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