Lehigh Iron Co. v. Rupp

• Decision Date: 24 April 1882
• Citation: 100 Pa. 95
• Parties: Lehigh Iron Company <I>versus</I> Rupp.
• Court: Pennsylvania Supreme Court

100 Pa. 95

Lehigh Iron Company versus Rupp.

Supreme Court of Pennsylvania.

March 8, 1882.

April 24, 1882.

March 8th 1882.

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

ERROR to the Court of Common Pleas of Lehigh county: Of July Term 1881, No. 88.

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Edward Harvey and John D. Stiles, for the plaintiff in error.—We contend that under the Act of April 26th 1855, P. L. 309, if the deceased leaves a widow and no children, she is alone entitled to recover damages, to the exclusion of parents. The Act of April 15th 1851, P. L. 674, gave the widow alone the right to sue, and while the act of 1855 extended this right to parents, it was not the intention to deprive the widow, if there was one, of her rights under the former Act. The disjunctive "or" shows that the right of parents was predicated on there being no widow: Penna. R. R. Co. v. Zebe, 9 Casey 328; N. Penna. R. R. Co. v. Robinson 8 Wright 178; Books v. Danville, 9 W. N. C. 339. The word "parents" in the Act of 1855 indicates the existence of family relation, in point of fact, as the foundation of the right to recover a reasonable compensation for the pecuniary loss sustained, and where this relation has ceased to exist at the time of the son's death by his marriage and separate residence the right in the parents does not exist: Penna. R. R. Co. v. Adams, 5 P. F. S. 499; Mansfield Coal Co. v. McEnery, 10 Norris 185; Penna. R. R. Co. v. Bantom, 4 P. F. S. 495; Penna R. R. Co. v. Henderson, 1 P. F. S. 323; Penna. R. R. Co. v. Keller, 17 P. F. S. 309; N. Penna. R. R. Co. v. Kirk, 9 Norris 15; Harkins v. Phil. & R. R. R. Co. 11 W. N. C. 120.

John Rupp (R. E. Wright, Jr., with him), for the defendant in error.—While the Act of 1855 gives a right of action to the widow, children or parents, it expressly provides that the sum recovered in case of the existence of both a widow and parents, "shall go to them in the proportion they would take his or her personal estate in case of intestacy." Huntingdon, &c. R. R. Co. v. Decker, 3 Norris 419; N. Penna R. R. Co. v. Robinson, 8 Wright 175. The widow cannot by bringing a suit and settling it without the consent of the parents deprive them of their statutory right to damages. Where there is a legal right there is a legal remedy.

Mr. Justice TRUNKEY delivered the opinion of the court, April 24th 1882.

This action is by a father to recover damages for the alleged negligent killing of his son by the defendant. His own testimony shows that the deceased was over nineteen years of age when he died, had been married six months, was keeping house and living about eight miles distant from his parents before his death, and that his parents gave him furniture for housekeeping; it does not show that after his marriage he gave any of his earnings to his parents. There is no question but that his widow's rights, under the intestate laws and under the statutes relating to death caused by negligence, are the same as if he had been of full age. It is unnecessary to determine whether the deceased was emancipated, or whether he was primarily bound to support his wife, even if it took all his income from labor, leaving nothing for his father.

In such cases as this there was no right of action at common law. The right is purely statutory, and is vested in the surviving members of the family, to wit, "the husband, widow, children or parents of the deceased, and no other relative; and the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy." In the decisions under the statute, it has been uniformly said that the words used seem to indicate the family relation in point of fact as the foundation of the right of action: N. Penna. Railroad Co. v. Kirk, 90 Pa. St. 15. The Act of 1851 gave the right of action exclusively to the widow, if there was one; if no widow, to the personal representatives. By the Act of 1858, the right is limited in all cases to the family; first, to the husband or widow; second, to the children, and last, to the parents. Where the deceased left children his parents have no right; nor have they where he left a widow and no children. The statute has never been construed that the husband and parents may have joint or separate actions, for the loss of the deceased wife and daughter. This is believed to be the first attempt by a parent to recover under the statute, when the deceased left a husband or wife or children...