Koons v. Philadelphia & Reading Ry. Co.

• Decision Date: 06 October 1924
• Docket Number: 11
• Citation: 281 Pa. 270,126 A. 381
• Parties: Koons, Administrator, v. Philadelphia & Reading Ry. Co., Appellant
• Court: Pennsylvania Supreme Court

126 A. 381

281 Pa. 270

Koons, Administrator, v. Philadelphia & Reading Ry. Co., Appellant

No. 11

Supreme Court of Pennsylvania

October 6, 1924

Argued May 26, 1924

Appeal, No. 11, May T., 1924, by defendant, from order of C.P. Dauphin Co., Jan. T., 1922, No. 222, overruling motion for non pros, in case of John L. Koons, Administrator of Lester M. Koons v. Philadelphia & Reading Ry. Co. Affirmed.

Motion for non pros. Before WICKERSHAM, J.

The opinion of the Supreme Court states the facts.

Motion overruled. Defendant appealed.

Error assigned was, inter alia, order, quoting record.

Judgment affirmed.

John T Brady, for appellant. -- A cause of action for death under this act accrues at the date of death and not upon the appointment of a personal representative: Missouri, K. & T.R.R. v. Wulf, 226 U.S. 570; Mumma v. Ry., 275 Pa. 277; Phillips Co. v. R.R., 236 U.S. 662; Central Vermont Ry. v. White, 238 U.S. 507, 511; Atlantic Coast Line v. Burnette, 239 U.S. 199; Troxell v. R.R., 227 U.S. 434.

The trial court was not bound by the decision of the circuit court of appeals in the Coronas Case.

John R. Geyer, with him Paul G. Smith, for appellee, cited: American R.R. of Porto Rico v. Coronas, 230 F. 545.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

PER CURIAM:

Plaintiff as administrator of the estate of his son Lester M. Koons, sued to recover for the death of the latter, which resulted from injuries received while in the employ of defendant company. The accident occurred April 22, 1915, at which time both the young man and defendant were engaged in interstate commerce. Death as a result of the injuries received followed on April 23, 1915. Letters of administration, on the son's estate, were granted plaintiff, September 23, 1921, and this action was begun by him as such administrator Feb. 6, 1922. On defendant's petition, setting forth the facts as above stated, a rule was granted on plaintiff to show cause why judgment of non pros should not be entered for the reason that the action was instituted more than two years after the death, and consequently was barred by the limitation contained in the Federal Employers' Liability Act. Following answer and argument, the court below discharged the rule, on plaintiff's contention that the limitation did not begin to run until the appointment of plaintiff as administrator, and the action, having been commenced within the period of two years following such appointment, was in time.

At the trial, the parties stipulated of record that a verdict should be entered in plaintiff's favor for $2,510, subject to the exception that the court erred in discharging defendant's rule and overruling its motion for judgment of non pros, defendant reserving its rights to an "appeal to the Supreme Court of Pennsylvania and the Supreme Court of the United States, if such can be had, without any question that the matters should have been heard upon trial which is waived by this agreement." The court subsequently entered judgment on the verdict and this appeal followed.

The limitation referred to involves the construction to be placed on section 6 of the Act of Congress of April 22, 1908, as amended by the Act of April 5, 1910, entitled, "an act relating to the liability of common carriers by railroad to their employees in certain cases." (U.S. Compiled...