Shambach v. Middlecreek Electric Co.
| Decision Date | 06 July 1911 |
| Docket Number | 114 |
| Parties | Shambach, Appellant, v. Middlecreek Electric Company |
| Court | Pennsylvania Supreme Court |
Argued May 9, 1911
Appeal, No. 114, Jan. T., 1911, by plaintiff, from judgment of the Superior Court, March Term, 1910, No. 23, affirming judgment of C.P. Snyder Co., Oct. T., 1907, No. 59, for defendant n.o.v. in case of Ida Shambach v. Middlecreek Electric Company. Affirmed.
Trespass to recover damages for death of plaintiff's husband. Before McCLURE, P.J.
The case turned upon the question whether the widow had the right to settle the suit. See report of same case in 45 Pa.Super 300.
The following opinion was filed by MORRISON, J.
This is an action of trespass based on the death of Henry Shambach caused, as alleged, by the negligence of the defendant. The verdict of the jury has settled the question of the defendant's negligence and the lack of contributory negligence by the deceased, and these questions are not raised in this appeal.
The deceased was survived by his widow, Ida Shambach and nine children, named in the declaration, all, or nearly all, of them minors. By the act of April 15, 1851, P.L. 669 (see sec 19, page 674), an action is given for the death of a person when caused by unlawful violence or negligence; and by the Act of April 26, 1855, P.L. 309, the persons entitled to recover are the husband, widow, children or parents of the deceased, the sum recovered going to them in the proportion they would take the personal estate of the deceased in the case of his or her intestacy. These acts determine the right to recover, which does not exist at common law and has no existence outside of them. It has been decided that these acts are in pari materia. And it is conclusively established by a line of decisions of our Supreme Court that when there is a husband or widow, children are not only not necessary, but not even proper parties, but it is necessary to name them in the declaration: Huntingdon & Broad Top Railroad Co. v. Decker, 84 Pa. 419; Haughey v. Pittsburg Rys. Co. (2), 210 Pa. 367; Black v. B. & O.R.R. Co., 224 Pa. 519. The right of said action cannot be assigned by the widow to the child, so as to enable suit to be brought in her name for its benefit: Marsh v. Western New York & Penna. R.R. Co., 204 Pa. 229, and by the plain terms of the act of 1855 the children cannot bring suit for themselves in their own names while the widow is living.
In the present case, after the widow had brought the action to recover damages for herself and the nine children of the deceased, and had named the latter in the declaration, as required by the act of 1855, she, on December 10, 1907, in consideration of $750 paid to her by the defendant, executed and delivered, under her hand and seal, a release and discharge of the defendant from all claims and demands of any kind for or by reason of, or in any way growing out of the accident, or death of said Henry Shambach. Thereafter it was sought at the trial of the case to recover, notwithstanding this release, the proportion of the damage claimed by the children, to wit, two-thirds of such sum as might be allowed by the jury. It is conceded that the widow favored such recovery. The defendant's counsel offered said release in evidence and claimed that it ended the suit; in substance, that the widow having the statutory right to bring and carry on the suit, and recover damages allowed by the court and jury, necessarily had the right to compromise and settle the suit for a good and valuable consideration. The trial judge admitted the release in evidence, notwithstanding the objection of plaintiff's counsel, and noted an exception and sealed a bill for plaintiff, reserving the question of the effect of the release, and submitted the case to the jury, and the result was a verdict in favor of the plaintiff for $1,320.80 for the use of the children. Thereupon defendant's counsel moved the court for judgment non obstante veredicto, and upon argument and consideration, the court subsequently granted such judgment for the defendant. To this judgment the plaintiff excepted and the court sealed a bill of exceptions as required by the Act of April 22, 1905, P.L. 286.
We do not understand that any question is raised as to the sufficiency of the release to end the case, provided the widow, plaintiff, had the power to compromise the claims of the children and release their rights. It thus appears that the single question now raised for decision is, Was the court right in holding that the widow, plaintiff, had the power to compromise and settle the case without the consent of a guardian of the minor children, and without the approval of the court whose wards the said minors were? It is conceded that this exact question has not been decided by either of the appellate courts of this state. At the argument and on first consideration of this question we were inclined to think the court erred in granting judgment for the defendant non obstante verdicto. But on more careful consideration of the acts of assembly, the authorities, the opinion of the court, and the arguments of the able counsel representing both sides of the case, we are forced to the conclusion that the judgment is right. It having authoritatively been decided in many cases by our Supreme Court that the widow is the proper party to sue in her own name and carry the suit to judgment and collection, it is difficult to see why she may not compromise and settle the case for a valuable consideration when she is not overreached or defrauded.
The able counsel for plaintiff cites and relies with much apparent confidence on the following cited and other cases: Lewis v. Turnpike Co., 203 Pa. 511, where Mr. Justice MITCHELL said: "The act first gives the right of action and then prescribes the mode of distribution of the sum recovered, but that necessarily means distribution among those entitled to sue. It would be absurd to suppose that in the same sentence the statute meant to give part of the damages to those to whom it had denied the right of action. We think the counsel draws an erroneous conclusion from this language. It refers mainly to the question of distribution and what is said about the right to sue refers to those who under certain conditions have that right. If the widow be dead, the children have a right to sue. A portion of the damage belongs to them and they are interested in the distribution. But the language of Mr. Justice MITCHELL does not mean that the children are parties to the suit of the widow except that they are to be named in the declaration for the purpose of distribution.
We also think the language of Mr. Justice STERRETT in Birch v Ry. Co., 165 Pa. 339, does not bear the construction put upon it by plaintiff's counsel. Counsel argues from that authority that even where the widow survives, the children have the right to maintain an action. This view is in conflict with the act of 1855 and with the adjudicated cases thereon. The children do not have the right to sue and carry on an action while the widow is alive. Counsel also cites Lehigh Iron Co. v. Rupp, 100 Pa. 95, but we do not think that case sustains plaintiff's contention. On page 99, Mr. Justice TRUNKEY, speaking for the Supreme Court, said: "When a husband or wife recovers damages, and there are children of the deceased, the provisions of the statute for distribution under the intestate law applies, and strictly accords with the main object of the statute, which is a remedy for the loss to the family. That case concedes that the suit is to be brought and carried on by the husband or wife but that the children are interested in the distribution, and it does not sustain the proposition that the children are necessary parties to the action. The learned counsel also cites a number of cases where the widow and children were joined as plaintiffs, but they must and do concede that the authoritative decisions of the Supreme Court are that the suit should be brought in the name of the widow...
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