Molz v. Hansell

• Decision Date: 18 December 1934
• Docket Number: 520-1934,519-1934
• Citation: 115 Pa.Super. 338,175 A. 880
• Parties: Molz v. Hansell, Appellant et al
• Court: Pennsylvania Superior Court

175 A. 880

115 Pa.Super. 338

Molz v. Hansell, Appellant et al

Nos. 519-1934, 520-1934

Superior Court of Pennsylvania

December 18, 1934

Argued October 29, 1934

Appeals by defendant from judgment of C. P. No. 1 Philadelphia County, December T., 1933, No. 3030, in the case of Madeline K. Molz v. Algernon R. Hansell et al.

Appeal from order of Board of Workmen's Compensation allowing subrogation. Before McDevitt, P. J., Kun and Parry, JJ.

The facts are stated in the opinion of the Superior Court.

Judgment entered denying defendant's right to subrogation as to award to illegitimate children. Defendant appealed.

Error assigned, among others, was judgment.

Affirmed.

Louis Wagner, and with him Richard A. Smith and Thomas J. Clary, for appellant.

Edwin J. McDermott, and with him William Charles Brown, for appellees.

Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

Keller, J.

This is a workmen's compensation case. It has to do with the right of the defendants to subrogation under Section 319 of the Workmen's Compensation Act, (Act of June 2, 1915, P. L. 736), applicable to cases where the employee's death was caused by the negligent act of a third person.

Thomas R. Flinn, an employee of the defendant, Hansell, was killed on October 30, 1932, while in the course of his employment, under such circumstances as to make one Thomas C. Manley liable in damages.

Manley was insured by the Alliance Casualty Company, and, on November 3, 1932, that company paid Madeline K. Flinn, whom they supposed to be the dead man's wife, $ 4,000 in settlement of her claim against Manley, on her own behalf as well as that of her two children, Richard and Madeline, aged eighteen months and six months, respectively.

It turned out that the marriage between Thomas R. Flinn and Madeline K. Flinn was invalid because he had a wife living at the time, -- who subsequently divorced him --, but the marriage was never validated and the two children were illegitimate.

At the time of his death Flinn had a legitimate daughter living -- the child of his legal marriage -- Virginia Nancy Flinn, aged five years and ten months. On November 5, 1932 a bill in equity was filed on her behalf in the Court of Common Pleas No. 5 of Philadelphia County joining as defendants all parties in any way connected with the matter and praying that the sum of $ 4,000 so paid as aforesaid be ordered to be paid to her.

In the course of that proceeding the facts relating to Flinn's two marriages were ascertained and an agreement was entered into by the parties by the terms of which the bill was dismissed without prejudice to the rights of the parties so far as compensation was concerned, and $ 2,000 was paid to Virginia Nancy Flinn out of the $ 4,000 paid in settlement of the claim against Manley.

Upon Flinn's death, by the negligence of Manley, a purely statutory right of action accrued in accordance with the Acts of April 15, 1851, P. L. 669, sec. 19, and April 26, 1855, P. L. 309, sec. 1, as amended by the Act of June 7, 1911, P. L. 678. The act last cited provides 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 the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy." By 'widow' is meant lawful widow, and by 'children' is meant legitimate children: Thompson v. D. L. & W. R. Co., 41 Pa.Super. 617, 619; 17 C. J. 1219; 8 R. C. L. 753; McDonald v. P. C. C. & St. L. Ry. Co., 144 Ind. 459, 43 N.E. 447; Dickinson, Admx. v. The North Eastern Ry. Co., 2 Hurlstone & Coltman (Exchequer) 734. Neither Madeline K. Flinn, nor her children, Richard and Madeline, could take any of Thomas R. Flinn's personal estate, in case of his death intestate.

Claims for compensation were presented against the employer, Hansell, on behalf of Virginia Nancy Flinn, the legitimate daughter, alleging dependency as the daughter of the deceased, and on behalf of Richard Flinn and Madeline Flinn, illegitimate children of Flinn, on the ground of dependency, as being children to whom he stood in loco parentis (Sec. 307, paragraph 9). The board awarded to the mother of Virginia Nancy Flinn, for and on her behalf, $ 3.33 1/3 per week from ...