Fisher v. Dye

• Decision Date: 24 September 1956
• Citation: 386 Pa. 141,125 A.2d 472
• Parties: Vincent G. FISHER, Appellant, v. Allen J. DYE. Allen J. DYE, Administrator of the Estate of Leticia M. Dye, v. Vincent G. FISHER, Defendant, Appellant, Allen J. Dye, Additional Defendant. Allen J. DYE, in his own right, v. Vincent G. FISHER, Appellant. Vincent G. FISHER v. Allen J. DYE, Appellant.
• Court: Pennsylvania Supreme Court

Page 472

125 A.2d 472

386 Pa. 141

Vincent G. FISHER, Appellant, v. Allen J. DYE.

Allen J. DYE, Administrator of the Estate of Leticia M. Dye, v. Vincent G. FISHER, Defendant, Appellant, Allen J. Dye, Additional Defendant.

Allen J. DYE, in his own right, v. Vincent G. FISHER, Appellant.

Vincent G. FISHER v. Allen J. DYE, Appellant.

Supreme Court of Pennsylvania.

Sept. 24, 1956.

James H. Stewart, Jr., Harrisburg, W. E. Shissler, Nauman, Smith, Shissler & Hall, Harrisburg, for Vincent G. Fisher.

James K. Thomas, Hull, Leiby & Metzger, Arthur H. Hull, Solomon Hurwitz, Hurwitz, Klein, Meyers & Benjamin, Irwin Benjamin, Macey E. Klein, Harrisburg, for Allen J. Dye.

Before STERN, C. J., and JONES, BELL, CHIDSEY and ARNOLD, JJ.

HORACE STERN, Chief Justice.

Following the not unusual pattern in automobile collision cases the stories told by the parties here involved are hopelessly at variance with one another. According to Vincent G. Fisher, he was operating a Mercury Coupe on May 3, 1953, at about 2:15 A.M. eastwardly on Route 22 (Jonestown Road) near Harrisburg; as he approached 39th Street a Dodge Sedan driven by Allen J. Dye in which his wife Leticia M.Dye was a passenger, and which had been proceeding westwardly on Route 22, made a diagonal left hand turn into 39th Street when Fisher was only 10 to 30 feet away and without Dye having given any warning of his intention to do so; although Fisher tried to apply his brakes he was unable to avoid the collision. Dye's story, on the other hand, was that he stopped briefly at the 39th Street intersection before turning; he signalled his intention to turn, looked to the west and, seeing no car approaching within a distance of up to 700 feet, he then proceeded, with the result that his car was struck after its front wheels had already passed the south edge of the pavement of the eastbound lane and were on the berm of the road.

Fisher instituted suit against Dye to recover for the damage to his car and for personal injuries. Dye, both in his own right and as administrator of the estate of his wife who had been killed in the collision, filed a cross-suit against Fisher, seeking recovery for property damages and for personal injuries and, as administrator, for damages under the Wrongful Death Act of April 15, 1851, P.L. 669, section 19, 12 P.S. § 1601 et seq.as amended, and the Survival Act of July 2, 1937, P.L. 2755, section 2, 20 P.S. § 772, re-enacted in the Fiduiaries Act of April 18, 1949, P.L. 512, sections 601, 603, 20 P.S. §§ 320.601, 320.603. The suit of Dye in his own right was severed from his suit as administrator and he was joined as an additional defendant in the action brought by him as the administrator of his wife's estate. The three actions were then consolidated for trial. In the suit of Fisher v. Dye the jury found for the defendant; in the suit of Dye in his own right against Fisher the jury likewise found in favor of the defendant; in the suit of Dye as administrator against Fisher as defendant and himself as additional defendant the jury found in favor of both the defendant and the additional defendant. The jury, therefore, must have concluded that Fisher and Dye had both been negligent.

The principal issue on the present appeals arises from the fact that in the survival action brought by Dye as administrator the trial judge instructed the jury that if they found that Leticia M. Dye at the time of her death had no creditors, that her husband was her sole heir, that Dye was negligent, and that his negligence contributed in any degree to the happening of the accident, he could not, as administrator of his wife's estate, recover any damages in the action. This instruction was based on the theory that if Dye had helped to bring about his wife's death he ought not to be allowed to profit thereby. Subsequently, however, the court en banc came to the conclusion that, since neither the Survival Statute nor the Intestate Act contained any provision depriving a husband of the right to share in his wife's estate even if the fund for distribution had come into being as the result of his own negligent act, the court should not write into the Acts an exception which the legislature had apparently not seen fit to make. Accordingly the court decided that the instruction given to the jury was erroneous and therefore granted the administrator's motion for a new trial.

The question thus presented is apparently one of first impression in Pennsylvania. In Minkin v. Minkin, 336 Pa. 49, 54, 55, 7 A.2d 461, 464, it was held in the case of the Wrongful Death Act that any party in interest who negligently contributed to the death of the decedent was barred from recovery on his own behalf, but the effect upon the Survival Action of such negligence on the part of an heir of the decedent who would receive or share in the damages recovered has not been similarly passed upon by any of the courts of this State. ¹ There is, of course, a difference in the permissible recoveries, as well as the theories on which such recoveries are based, between the two Acts: under the Wrongful Death Act the amount recovered is not a part of the decedent's estate but compensation to the individual members of the family for their loss, whereas under the Survival Act the damages are measured by the pecuniary loss to the decedent, and whatever is recovered forms part of the decedent's estate. McFadden v. May, 325 Pa. 145, 149, 189 A. 483, 485; Pantazis v. Fidelity & Deposit Co. of Maryland, 369 Pa. 221, 224, 225, 85 A.2d 421, 423; Funk v. Buckley & Co., Inc., 158 Pa.Super. 586, 590, 591, 45 A.2d 918, 920, 921. In our opinion, however, the question whether Dye can ultimately receive or share in the proceeds of any recovery he might obtain as administrator of his wife's estate under the Survival Act is now prematurely raised, and the court below properly granted a new trial so that the right of the estate of Leticia M. Dye to recover damages from either Fisher, or her husband, or both, can be determined without regard to the ultimate disposition of the proceeds of any recovery that may be made. Thus it may be found by the jury that her estate, for any one or more of several posible reasons, is not entitled to recover any damages, ² and, even if there...