Books v. Borough of Danville

• Decision Date: 04 October 1880
• Citation: 95 Pa. 158
• Parties: Books, Administrator, <I>versus</I> Borough of Danville.
• Court: Pennsylvania Supreme Court

95 Pa. 158

Books, Administrator, versus Borough of Danville.

Supreme Court of Pennsylvania.

June 12, 1880.

October 4, 1880.

June 12th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Common Pleas of Columbia county: Of May Term 1880, No. 54.

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Leander K. Mowrer, Charles R. Buckalew and Joshua W. Comly, for plaintiff in error.—Our interpretation of the twenty-first section of art. iii. of the Constitution is that an action, for the cause of action therein declared to survive, can only be sustained by the executors or administrators of the deceased. The husband, doubtless, could also maintain his action in his own right under the Act of 1855, but the right of action declared by the Constitution to survive is a totally different right, namely, that which the deceased had in his lifetime for the injuries sustained, and which, when the injuries are followed by death, survives to his administrator.

What is this cause of action that is to survive? Undoubtedly it can only be the cause of action which the deceased had by the laws of this Commonwealth, at and immediately before his death, for no other person is mentioned as suffering injury or damage, or is mentioned at all. In fact no one is expressly mentioned, but the words "injuries to persons" and "in case of death from such injuries," necessarily imply a person suffering such injuries and by reason of them succumbing to death, and it is his cause of action which the Constitution says shall not die with him, but shall survive. There certainly is no word in this section of the Constitution to lead the mind of the reader to the domestic relations of the deceased, or to the pecuniary damages for the injury resulting from his death to those relatives, to whom the Act of April 26th 1855 (Pamph. L. 309, Bright. Purd. Dig. 1094, pl. 3), gives an action for their recovery. Nor does the Constitution give expressly an action to recover damages for the death of the deceased, as did the 19th section of the Act of April 15th 1851, though we think that the intention clearly appears that the action shall survive to recover compensation for all that the deceased suffered or lost by means of the injury to his person.

Actio personalis moritur cum persona is the rule and maxim of the common law, and in case of the death of either the plaintiff or of the defendant, a personal action always abated. Where, however, the right of action arose ex contractu, it generally survived the death of either party, and whenever it did survive it always descended to the personal representatives of him who had it in his lifetime: 3 Bl. Com. 302. The purpose of the appointment of executors or administrators is that they may represent the deceased by enforcing the personal rights of action which he had in his lifetime, and in defending his estate against any claims that may be made against it. There is no reason why such rights should vest in any one else, and the law has always vested them in the personal representatives. Where the Constitution in this section, therefore, says, "the right of action shall survive," it vests the right in the personal representatives of the deceased.

Had the first sentence in this section of the Constitution ended with the words "the right of action shall survive," it is probable that no one would have thought of arguing or contending that the right of action thus surviving was not vested by the Constitution in the legal representatives of the deceased. But the sentence proceeds, saying, "and the General Assembly shall prescribe for whose benefit such actions shall be prosecuted," and it was these latter words which the learned court below construed as authorizing the legislature to transfer the legal right of action from the legal representatives of the deceased to her surviving husband. The counsel for the plaintiff in error are unable to assent to this construction. These words have no relation to the legal parties or to the legal form of the action, but only to what might be recovered by it. The Constitution fixed the legal party, and authorized the legislature to designate the use party. There is a legal congruity in requiring that a right of action which survives the deceased, shall be prosecuted in the name of his legal representative, and it certainly cannot be said in Pennsylvania that there is any legal incongruity or impropriety in requiring an action to be brought in the name of a legal plaintiff for the use and benefit of another person. Besides this, there was strong reason why the Constitution should fix the parties, and give a complete and perfect right of action itself, inasmuch as the object and purpose of this section was to restrain and control the legislature, as otherwise this object and purpose would be defeated by the legislature simply by omitting the action required of them to perfect the right of action. The legislature, in fact, has not attempted to prescribe for whose use these actions shall be prosecuted. By the 19th section of the Act of April 15th 1851, Pamph. L. 674, Purd. Dig. 1093, a right of action was given in all cases of death occasioned by unlawful violence or negligence to the widow, or if there was no widow, to the personal representatives of the deceased, to recover damages for the death of deceased, and left it to the jury to place a money value on the life in the same manner as in other cases they estimate the value of health and reputation: Pennsylvania Railroad Co. v. McCloskey's Adm'r., 11 Harris 526. The Act of 1855 changed this, and substituted, as the measure of damage, the pecuniary loss suffered by the husband, wife, children or parents, plaintiffs in the action, or for whose use it was brought. This was an entire change of the cause of action, and in a suit under the Act of 1855, nothing can be recovered for any suffering borne or loss sustained by the deceased, but only for the pecuniary loss which his said surviving relatives may have sustained by reason of his death: Pennsylvania Railroad Co. v. Zebe, 9 Casey 318; Same v. Vandever, 12 Id. 298; Same v. Butler, 7 P. F. Smith 335, and Mansfield Coal & Coke Co. v. McEnery, 10 Norris 185. By these cases it is established that the cause of action, under the Act of 1855, is the pecuniary loss of the deceased's surviving family, but that cause of action which survives by the Constitution is for the suffering and loss which the deceased sustained in his lifetime and for which he could have recovered damages if he had lived to bring suit and obtain judgment. There is no resemblance between these two distinct causes of action. The difference is recognised and asserted in Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith 315. There is no conflict between the Constitution and the Act of 1855, they regard different rights, and if the act had been passed immediately after the adoption of the Constitution of 1873, instead of more than eighteen years before, it could, with no propriety or justice, be considered an execution of the power given to the legislature by the twenty-first section of the third article of the Constitution. It does not affect the Constitution, nor is it thereby affected. It was not unconstitutional when it was passed in 1855, and is not so now. Its vigor is unimpaired by the Constitution of 1873, and there are no provisions in the latter which can prevent the passage by the legislature of a supplement extending the provisions of the act to other relatives than those therein named, or to any other persons whatever. There is nothing to prevent the two actions, the one for the injury to the deceased, the other for the pecuniary loss sustained by the family of the deceased, from being maintained at the same time and both pursued to judgment and execution.

In view of the primary object and purpose of this section of the Constitution, it was a matter of minor importance whether the action was prosecuted for the benefit of the estate of the deceased or for that of his family. The recovery of the damages was but of secondary consideration of itself, and had its greatest importance in being a means to be used to effect the main purpose. If the main purpose had been to secure the recovery of the damages, surely the framers of this section, when they prohibited the legislature from limiting the amount to be recovered for injuries resulting in death, or for injuries to persons or property, would have given to the right of action for injury to property, and to that for injury to the person not resulting in death, the same power to survive that they have given to the right when the injury results in death. They would also have...