Appeal from order of Court of Common Pleas of Bucks County, Jan. T., 1962, No. 555, in case of Dora DiBelardino, as administratrix of estate of Vincent DiBelardino, v. Lemmon Pharmacal Co., Wilson & Company, Inc. and John Sanson.
Thomas A. Reap, Jr., with him Maxwell P. Gorson, for appellant.
Frederick E. Smith, with him George V. Strong, Jr., John H. Potts, and Ross, Smith & Renninger, and Strong, Barnett and Grasberger, for appellee.
George P. Williams, III, with him William M. Power, Bernard G. Segal, and Schnader, Harrison, Segal & Lewis, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Musmanno joins in this dissenting opinion.
May a widow, as administratrix of her deceased husband's estate, institute an action for wrongful death in assumpsit based upon an alleged breach of an implied warranty of fitness for use? Such is the issue on this appeal.
On or about August 29, 1960, Lemmon Pharmacal Company (Drug Company), sold and delivered to Dr. John Sanson "two 5 cc. vials of 'Chyzyme Aqueous', thereby warranting and representing that said drug was safe and fit for use as an injection into human beings generally". On or about February 7, 1961, Vincent DiBelardino (decedent), purchased an injection of "Chyzyme Aqueous" from Dr. Sanson who injected the drug into decedent's body. Allegedly, the decedent died on the same day as a result of the injection of the drug.*fn1
Alleging that the drug injected into decedent's body was not fit for use in that it contained harmful and dangerous ingredients in breach of an implied warranty of fitness for use, decedent's administratrix instituted an assumpsit action in the Court of Common Pleas of Bucks County against the Drug Company. The complaint contained two counts: the first count was based
upon the so-called "Wrongful Death" statute,*fn2 and the second count was based upon the so-called "Survival" statute.*fn3 The Drug Company filed preliminary objections which raised three issues: (a) that an action of assumpsit did not lie under the "Wrongful Death" statute, supra; (b) that an action of assumpsit did not lie under the "Survival" statute, supra; (c) that no cause of action had been pleaded since there was no averment of any privity of contract between the decedent and the Drug Company. The court below upheld the preliminary objection on the ground that an action of assumpsit did not lie under the "Wrongful Death" statute and dismissed the other preliminary objections. From the order sustaining the preliminary objection this appeal has been taken.
Although the precise issue herein presented is of first impression in this Court,*fn4 on numerous occasions the language of the "Wrongful Death" statute has been construed by this Court.
At common law there was no right of action for damages for negligence resulting in death and no right in any one to recover damages for the death of another: Howard v. Bell Telephone Co., 306 Pa. 518, 160 A. 613; Potter Title & Trust Co. v. Petcoff, 122 Pa. Superior Ct. 540, 186 A. 320. "The purpose of the legislation [Acts of 1851 and ...