Mumma v. Philadelphia & R. Ry. Co.

• Decision Date: 24 June 1922
• Parties: MUMMA v. PHILADELPHIA & R. RY. CO.
• Court: Pennsylvania Supreme Court

119 A. 287

MUMMA
v.
PHILADELPHIA & R. RY. CO.

Supreme Court of Pennsylvania.

June 24, 1922.

Appeal from Court of Common Pleas, Dauphin County; John E. Fox, Additional Law Judge.

Action by Sadie Mumma, administratrix of Enos B. Mumma, against the Philadelphia & Reading Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ.

John T. Brady, of Harrisburg, for appellant.

R. A. Henderson and J. Banks Kurtz, both of Altoona, and I. B. Swartz, of Harrisburg, for appellee.

KEPHART, J. Enos B. Mumma was employed by appellant as an engineer on a train engaged in interstate commerce, between Pennsylvania and New Jersey, and, on the night of March 22, 1910, while engaged in such service, received an injury, in Berks county, Pa., from which he died on the 31st of the same month. A summons was issued March 25, 1911, by Sadie Mumma as plaintiff. An appearance was entered six days later, and nothing further done until October 26, 1914, when, on motion, the record was amended to read: "Sadie Mumma, administratrix of Enos B. Mumma, deceased," instead of "Sadie Mumma." On the same day plaintiff's statement was filed. June 12, 1916, plaintiff ruled defendant to plead, which was done three years later, October 31, 1919. Plaintiff's statement clearly brought the action under the federal Employers' Liability Act of April 22, 1908 (U. S. Comp. St. §§ 8657-8605) and its amendments.

When the case was on trial, appellant objected to the admission of any evidence for the reason the party plaintiff had been changed from an individual to a representative capacity, effecting a change in the cause of action, equivalent to bringing a new suit, beyond the statutory period of two years, as provided by the act of Congress. The motion was denied and the case proceeded; no evidence being offered by defendant, a verdict and judgment was entered for plaintiff.

119 A. 288

We cannot agree the substitution of Sadie Mumma, administratrix, introduced a new cause of action, barred by section 6 of the act of Congress of April 22, 1908, which provides, "No action shall be maintained under this act unless commenced within two years from the day the cause of action accrued."

The federal law countenances such change in the action after the statutory period, where the only amendment is a more specific designation of the capacity in which the party plaintiff sues. When the case was...