17 A. 597 (Pa. 1889), 328, Usher v. West Jersey R. Co.

Docket Nº:328
Citation:17 A. 597, 126 Pa. 206
Opinion Judge:JUSTICE MITCHELL
Party Name:JOSEPHINE USHER v. WEST JERSEY R. CO
Attorney:Mr. George S. Graham (with him Mr. John Roberts), for the plaintiff in error: Mr. David W. Sellers, for the defendant in error:
Judge Panel:Before PAXSON, C.J., STERRETT, CLARK, McCOLLUM and MITCHELL, JJ.
Case Date:May 06, 1889
Court:Supreme Court of Pennsylvania

Page 597

17 A. 597 (Pa. 1889)

126 Pa. 206

JOSEPHINE USHER

v.

WEST JERSEY R. CO

No. 328

Supreme Court of Pennsylvania

May 6, 1889

Argued: March 25, 1889

ERROR TO THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.

No. 328 January Term 1888, Sup. Ct.; court below, No. 33 March Term 1886, C.P. No. 4.

On February 27, 1886, Josephine Usher brought an action in case against the West Jersey Railroad Company, the narr charging, inter alia, that the defendant company, in carrying John F. Usher from Camden to Cape May, bye its carelessness and negligence caused his death and by reason thereof became liable to the plaintiff and her child, the widow and next of kin of the deceased, for the injury sustained by them. The defendant pleaded, not guilty.

At the trial on November 16, 1887, before WILLSON, J., the plaintiff proved the death of John F. Usher, a citizen of Pennsylvania, by being thrown from the defendant company's train, while a passenger thereon, near Malaga, N.J., and that he left to survive him a widow, the plaintiff, and one child. The plaintiff then put in evidence the statute of New Jersey, act of March 3, 1848, P.L. 151, §§ 1 and 2 whereof provide:

1. "That whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.

2. "That every such action shall be brought by and in the names of the personal representatives of such deceased person; the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death to the wife and next of kin of such deceased person: Provided, that every such action shall be commenced within twelve calendar months after the death of such deceased person."

The plaintiff then rested, when the defendant moved the court to order a nonsuit, for the reason that the action was not brought by the personal representative of the deceased husband, as required by the New Jersey statute, the death having been caused in that state. The court allowed the motion, and ordered judgment of nonsuit to be entered, with leave, etc. Motion, rule, etc.

The rule to show cause why the judgment of nonsuit should not be vacated having been argued, on January 21, 1888, the court, WILLSON, J., citing Knight v. Railroad Co., 108 Pa. 250; Dennick v. Railroad Co., 103 U.S. 11, and Patton v. Railway Co., 96 Pa. 169, discharged the rule, whereupon the plaintiff took this writ, assigning as errors the order entering the judgment of nonsuit and the order discharging the rule to show cause why the judgment should not be vacated.

The learned judge was right in entering a nonsuit, and the judgment is affirmed.

Mr. George S. Graham (with him Mr. John Roberts), for the plaintiff in error:

1. The action is personal, and being transitory, it may be brought in any place where the defendant can be served with process; and the fact that the action is statutory and not at common law does not make it local: Bennett v. Cadwell, 70 Pa. 258. The general rule is, that an action for a tort must be brought in the name of the party injured by the tort, and whoever has sustained the loss is the proper person to call for compensation. At common law if the party immediately injured die, the remedy determines. But the Pennsylvania act of April 26, 1855, P.L. 309, recognizes the injury to the relative rights of persons and confers new rights unknown to the common law. No persons other than those specified in said act having been clothed with the right of action for injuries resulting in death, no other persons can sustain such an action in our courts: Books v. Danville Bor., 95 Pa. 158; Mann v. Weiand, 81* Pa. 243; Huntingdon etc. R. Co. v. Decker, 84 Pa. 419.

2. Under the New Jersey statute the right of action is created for the benefit of the "widow and next of kin" to recover compensation for the injury to their relative rights. It is not an action for an injury to the deceased, but for an injury to the relative rights of the living. The damages go in express terms to indemnify the living, and not the estate of the dead. The...

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