Alessandrelli v. Arbogast

• Decision Date: 10 November 1913
• Docket Number: 458.
• Citation: 209 F. 126
• Parties: ALESSANDRELLI v. ARBOGAST.
• Court: U.S. District Court — Middle District of Pennsylvania

209 F. 126

ALESSANDRELLI v. ARBOGAST.

No. 458.

United States District Court, M.D. Pennsylvania.

November 10, 1913

M. A Viti, of Philadelphia, Pa., and John McGahren and M. H McAniff, both of Wilkes-Barre, Pa., for plaintiff.

F. B Holmes, of Stroudsburg, Pa., for defendant.

WITMER District Judge.

An action of trespass was instituted by the plaintiff, as widow to recover damages for the alleged negligent death of an alien, Giovanna Aulino. The accident occurred December 14, 1911, from which death resulted four days thereafter. The summons was issued December 17, 1912, and plaintiff's statement filed February 6, 1913, wherein it is alleged substantially that:

The 'plaintiff is a subject of the king of Italy, and the widow of Giovanna Aulino, deceased; that the death of the said Giovanna Aulino resulted from certain alleged negligence of the defendant; that the plaintiff, as widow of said Giovanna Aulino, has sustained damages in the sum of $15,000, and therefore she brings suit.'

The defendant, February 24, 1913, filed his plea alleging that the plaintiff is not the widow of the decedent, whereupon, on May 20, 1913, plaintiff moved to amend the record and pleadings by changing the capacity in which plaintiff sues from that of 'widow' to that of 'mother of the decedent,' to which the defendant objects upon the ground that the proposed amendment would change the legal capacity in which the plaintiff sues, whereby a new and different cause of action would be introduced, depriving the defendant of the right which had accrued to him to plead the statute of limitation.

A civil action to recover damages for loss occasioned by the negligent or violent destruction of life is unknown to the common law. It can be maintained only by virtue of the statute creating it; and recovery must be accordingly to the course and measure of relief provided by the statute and at the suit of the person or persons on whom the statute confers the right of action. The plaintiff's right of action, if she has any, whether as widow or mother of the decedent, is under the Pennsylvania statute of the 25th of April, 1855 (P.L. 309), as amended by the act of June 7, 1911 (P.L. 678). The act, as amended, reads as follows:

'Section 1. Be it enacted, etc., that the persons entitled to recover damages for any injuries causing death shall be the husband, widow, children, or parents of the deceased, and no other relatives; and that such husband, widow, children, or parents of the deceased shall be entitled to recover, whether he, she, or they be citizens or residents of the commonwealth of Pennsylvania, or citizens or residents of any other state or place subject to the jurisdiction of the United States, or of any foreign country, or subjects of any foreign potentate; and the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy, and that without liability to creditors under the laws of this commonwealth.

'Sec. 2. The declaration shall state who are the parties entitled in such action; the action shall be brought within one year after the death, and not thereafter.'

Herein provision is made for three classes of persons in whom the right of action may successively, but not jointly, exist First, the husband or widow; second, the children; and, last, the...