Pennsylvania Railroad Co. v. Keller

• Decision Date: 09 February 1871
• Citation: 67 Pa. 300
• Parties: Pennsylvania Railroad Co. <I>versus</I> Keller <I>et ux.</I>
• Court: Pennsylvania Supreme Court

Page 300

67 Pa. 300

Pennsylvania Railroad Co. versus Keller et ux.

Supreme Court of Pennsylvania.

January 3, 1871.

February 9, 1871.

January 3d 1871.

Before THOMPSON, C. J., READ, AGNEW and WILLIAMS, JJ. SHARSWOOD, J., at Nisi Prius

Certificate from Nisi Prius, No. 65, to January Term 1866.

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Chapman Biddle and T. Cuyler, for plaintiffs in error.—A married woman cannot sue alone: Kutz's Appeal, 4 Wright 94; Smith v. Smith, 9 Id. 403. At the commencement of the suit it was defective for want of proper parties. The Acts of May 4th 1852, § 2, Pamph. L. 574, April 12th 1858, Pamph. L. 243, Purd. 47 pl. 3, 4, allow amendments in cases of mistake; there is no evidence of mistake here, and the amendment should have been refused: Locke v. Daugherty, 7 Wright 88. The evidence shows that the original form of action was for a dishonest purpose. No suit was properly brought within a year; an amendment three years after the death is to be treated as a new suit, and beyond the limitation: Russell v. Bell, 8 Wright 54. There was no evidence of reasonable expectation of pecuniary advantage from deceased to plaintiff. The Act of 1868 (Purd. 1521, pl. 2, referred to in the charge) was to restrict the rule as to the measure of damages as laid down in Penna. Railroad v. McCloskey, 11 Harris 526, and fix a more precise standard, requiring proof of the actual damage: Franklin v. South-East Railway Co., 3 H. & N. 211; Dalton v. Same, 4 C. B. 226.

F. C. Brightly (with whom was F. F. Brightly), for defendants in error.—The amendment was properly allowed: Druckenmiller v. Young, 3 Casey 97; Ganzer v. Fricke, 7 P. F. Smith 319; Wilson v. Savings Bank, 9 Wright 494; Cochran v. Arnold, 8 P. F. Smith 399; Rangler v. Hummel, 1 Wright 132. The plaintiff's right to damages is established by Penna. RR. v. Adams, 5 P. F. Smith 499; Dalton v. South-East Railway Co.; Franklin v. Same, supra. The parent has a right of action for the death, independently of the question of damages: Penna. Railroad v. Zebe, 9 Casey 329; Same v. Bantom, 4 P. F. Smith 495; Coakley v. Penna. Railroad Co., 6 Am. Law Reg. 355. The Act of 1868 is but in affirmance of the law existing before, which is compensation for actual loss: Coakley v. Penna. Railroad, Penna. Railroad v. Bantom, supra; Same v. Goodman, 12 P. F. Smith 329; Illinois Central Railroad v. Barron, 5 Wall. 90.

The opinion of the court was delivered, February 9th 1871, by THOMPSON, C. J.

The first thing we shall notice is the complaint of error in allowing the record to be amended at a term antecedent to the trial below, by changing the names of the plaintiffs. This the Act of the 4th of May 1852 fully authorized, if made apparent to the court that there was an error in the original institution of the suit. But we will not dwell on a matter so well settled, as the right of the court to allow such an amendment as was permitted in this case, on considerations which showed that in justice it ought to be made. The authorities cited by the counsel of the defendants in error fully prove this. But we discover no exception taken when the amendment was ordered, and this is at once an answer to this matter of complaint.

Afterwards, and on the trial, the amendment was attempted to be overthrown and the plaintiffs put out of court by an appeal to the jury, occurring in this wise. Evidence was offered to show that Louisa Keller, the meritorious plaintiff, had at one time applied for a pension, as the widow of one Anker, being at the time married to Keller, and obtained the same in fraud, as is alleged, of the pension laws, and that this suit was brought in the same name to cover that fraud, and therefore she was not entitled to the amendment in the case referred to, and consequently not entitled to maintain this suit. There was a point to this effect put to the court to charge upon, but of what evidence it was predicated we know not. The learned judge refused so to charge, and told the jury that the case was to be tried as the parties appeared on the record, precisely as if it had been so brought in the first place. This was right beyond a peradventure, and the error is not sustained. Nor is there any error in the 2d and 4th assignments.

The 5th error assigned raises a question of the right of plaintiff, Louisa Keller, to recover for the loss occasioned by the death of her son by negligence of the company, he being over age at the time. But our learned brother charged, in answer to the point on that subject propounded, that if the family relation still existed between mother and son, at the time of the death, and there were reasonable grounds on her part to expect future pecuniary advantage from the continuance of this relation, as in the past since arriving at age, the destruction of such expectations by the negligence of the defendants in causing his death, it would sustain the action, and referred the facts in evidence to the jury. This was right, or the case of The Penna. Railroad Co. v. Adams, 5 P. F. Smith 499, was wrong, a conclusion which we are by no means prepared to make. This error is therefore not sustained.

The material question in the case is raised by the defendants' 4th point, and the answer thereto. The point was, "that any recovery had in this case must be strictly limited to a pecuniary compensation for a loss actually shown to have resulted from the negligence of the defendant." The learned judge agreed, and charged that any recovery in the case must be strictly limited to a pecuniary compensation for the pecuniary loss resulting to the plaintiff, but added, "it is not necessary, to enable the plaintiff to recover damages for the death of her son, that the evidence should show the precise amount in dollars and cents. From the nature of the case, the precise and definite amount of the damage cannot be actually shown. But the evidence must clearly show that the plaintiff did actually sustain damages — pecuniary damages or loss." This was the view taken by the learned judge of the 2d section of the Act of 4th April 1868, which he conceived to be required, as a reasonable interpretation of it. In this we all agree.

The construction contended for by the company, would, beyond a question, deny compensation for death by negligence in almost every conceivable case. Is it possible to become reconciled to the belief that the legislature intended, that by the terms used in the section, there lurked a repeal, by implication, of existing remedies for the greatest of all civil wrongs, the deprivation of life of husband or wife, or parent and child, by negligence? We...