Rodney v. Staman
| Decision Date | 27 May 1952 |
| Parties | RODNEY v. STAMAN. |
| Court | Pennsylvania Supreme Court |
Argued March 25, 1952
Appeal, No. 21, March T., 1952, from judgments of Court of Common Pleas of Fayette County, March T., 1950, No. 658, in case of Bernard Rodney, Admr., Estate of Rose Staman, also known as Rose R. Staman, v. Harry H. Staman, Exr., Estate of Paul Staman, deceased. Judgments affirmed; reargument refused June 24, 1952.
Trespass for wrongful death. Before CARR, P.J.
Verdicts for plaintiff in the sum of $1,282.50 for funeral expenses and $15,000. for surviving children, and judgments thereon. Defendant appealed.
Judgments affirmed.
H. E. McCamey, with him Henry R. Beeson Higbee, Lewellyn & Beeson, J. Lawrence McBride and Dickie, McCamey, Chilcote, Reif & Robinson, for appellant.
David E. Cohen, with him Milton D. Margolis, for appellee.
Before DREW, C.J., STEARNE, JONES, BELL, CHIDSEY and MUSMANNO, JJ.
While Paul Staman and his wife were travelling by automobile in Ohio, they met with an accident as a result of which both were thrown from the machine and killed instantly. The automobile was owned by the husband and the Stamans were its only occupants. The administrator of the wife's estate, on behalf of two surviving children, sued the husband's estate in the Court of Common Pleas of Fayette County, Pa., for damages for their mother's wrongful death. At trial, the jury returned verdicts for the plaintiff whereon judgments were entered after the court en banc had refused the defendant's motions for judgments n.o.v. and for a new trial. This appeal by the defendant followed.
On the question of liability, the appellant contends (1) that the action is not maintainable under the Wrongful Death Statute of Ohio, (2) that there was no proof that the husband was driving the car at the time of the accident and (3) that the evidence of wilful or wanton misconduct was insufficient under the Ohio decisions to carry the case to the jury. The appellant also assigns several alleged trial errors. The substantive rights of the parties are, of course, to be determined according to the law of Ohio -- the place of the alleged tort: Mackey v. Robertson, 328 Pa. 504, 506, 195 A. 870.
The Ohio Wrongful Death Statute (7, Page, Ohio General Code Annotated, Sec. 10509-166) declares that the act causing the death must be "... such as would have entitled the party injured to maintain an action and recover damages in respect thereof, if death had not ensued...." The appellant contends that this requirement applies to the person of the deceased for whose death the action is brought as well as to the alleged tortious act and that, consequently, the personal disability arising under Ohio law from the marital relationship between the deceased and the tort-feasor bars an action for the wife's wrongful death as effectively as would the absence of a breach of duty owed by the defendant or the presence of contributory negligence on the part of the deceased. We cannot accept this contention. There are no Ohio decisions on the particular point, but it is well settled in that State that its Wrongful Death Statute gives rise to an independent action accruing only upon death: Mahoning Valley Railway Co. v. Van Alstine, 77 Ohio St. 395, 406 et seq., 83 N.E. 601; May Coal Co. v. Robinette, 120 Ohio St. 110, 165 N.E. 576. In fact, the action is considered so unrelated to the deceased as to be unaffected by a release given by him before death: Phillips v. Community Traction Co., 46 Ohio App. 483, 189 N.E. 444. The independence of an action is itself ample justification for not barring a suit for wrongful death because of personal relationship between the deceased and the tort-feasor.
In Pennsylvania, where the right of action is deemed derivative, a suit for wrongful death is not barred because of the given relationship. While our Wrongful Death Act [1] does not contain the above-quoted words of the Ohio Statute, which were taken directly from Lord Campbell's Act (9 and 10 Vict., c. 93, Sec. 1), "... we, in common with most jurisdictions, have hitherto interpreted our statute as if worded in the same manner...": Kaczorowski v. Kalkosinski, 321 Pa. 438, 440, 184 A. 663. After noting in the Kaczorowski case that "We have announced the principle that the statutory action is derivative because it has as its basis the same tortious act which would have supported the injured party's own cause of action...", we immediately went on to describe the source of the action as follows: "Its derivation... is from the tortious act and not from the person of the deceased, so that it comes to the parties named in the statute free from personal disabilities arising from the relationship of the injured party and tort-feasor." Since suit for wrongful death is not barred because of personal relationship where the action is held to be derivative, a fortiori, it will not be so barred where the action is independent, as in Ohio, and we so hold.
The public policy which prevents a wife from suing her husband in tort has no relevancy to facts such as are here present: Welch v. Davis, 410 Ill. 130, 101 N.E. 2d 547. The oneness of spouses has been abolished and, with the death intervening, there is no longer family harmony to be conserved. Moreover, the policy of the Wrongful Death Statute would be unreasonably defeated by adoption of the interpretation contended for by the appellant. Unquestionably, a wrong has been done relatives of the wife who fall within the purview of the Act. No good reason exists why a late relationship between the deceased and the tort-feasor should bar the damaged third persons from recovery.
As to the appellant's contention that there is no evidence that the husband was driving the automobile at the time of the accident, there is evidence that he was the owner of the car. That fact affords a rebuttable presumption that he was the driver of the automobile at the time of the accident. The use of presumptions arising from the evidence is determined by the lex fori: Restatement, Conflict of Laws, § 595 (2). While there is no decision in this State directly in point, in Limes v. Keller, 365 Pa. 258, 260, 74 A.2d 131, Mr. Justice STERN said "... there was enough circumstantial evidence [as to who was driving], even apart from the rebuttable presumption that the owner of the automobile was operating it ..." (Emphasis supplied), and cited Bastian v. Baltimore & O.R. Co., 144 F. 2d 120 (C.C.A. 3). In that case, the law of Pennsylvania on the question of the presumption was a matter for the Federal Court's ascertainment and application. It was there said (p. 123) that "It is the law of many States that an owner is presumed to be in charge of and have control of his property, even if that property be a vehicle." To this was coupled a footnote containing a discussion of the provision of The Vehicle Code (75 PS § 739) that, in proceedings for violations of the Code, the license plate shall be prima facie evidence that the owner was at the time operating the vehicle. The footnote continued, -- "We think that this statute is suggestive of what a Pennsylvania court might hold were it necessary to decide in a civil case who was the driver of a car and no fact other than ownership of the vehicle was presented." Justice STERN'S citation of the Bastian case gave his dictum in the Limes case the weight of a considered pronouncement on the Pennsylvania law which we now follow.
The appellant's remaining contention on liability is that the evidence was insufficient to carry the case to the jury on the question of wilful or wanton misconduct on the part of the driver. The Ohio Guest Statute (4A, Page, Ohio General Code Annotated, Sec. 6308-6) imposes liability on the driver of a car for injury to a guest passenger only where such injury is occasioned by the driver's "wilful or wanton misconduct". It is agreed by the parties to the action that Mrs. Staman, the plaintiff's deceased, was a guest within the contemplation of the Ohio Statute in the car driven by her husband.
The only evidence concerning the accident is to be found in the uncontradicted testimony of the one living eyewitness, a driver of a truck into which the Staman car crashed, and from the photograph of the scene taken immediately after the accident which the plaintiff introduced in evidence. It is thus established that, on a rainy and misty day, the Staman car was being driven at a speed of 75 to 80 miles an hour, downhill, on a wet, brick-top road, 20 feet wide, into a curve at the bottom of the hill. For the 5 1/2 miles along which the Staman car had travelled immediately prior to the accident, the road was "awful curvy". The berm was soft. The truck driver who was proceeding on the highway in direction opposite to the Stamans was also descending a hill toward the same curve at the bottom. As the Staman car at its excessively high speed entered the curve, its right wheels went off the roadway onto the berm. It immediately came back onto the road at a sharp angle, crossed over the center line and crashed into the left front of the truck which its driver was slowing down and pulling off the road toward the righthand side.
The appellant bases his contention that the evidence was insufficient to go to the jury one the question of the driver's wilful or wanton misconduct on the grounds that there is no evidence as to the driver's state of mind and that, according to Ohio law, excessive speed alone is not evidence of the requisite misconduct.
As to the driver's state of mind, it has been held in Ohio that "Such a disposition or mental state is shown by a person, when, notwithstanding his conscious and timely knowledge of an approach to an unusual danger and of common...
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