Thompson v. Delaware, Lackawanna & Western Railroad Co.

• Decision Date: 03 March 1910
• Docket Number: 69-1909
• Parties: Thompson v. Delaware, Lackawanna & Western Railroad Company, Appellant
• Court: Pennsylvania Superior Court

41 Pa.Super. 617

Thompson v. Delaware, Lackawanna & Western Railroad Company, Appellant

No. 69-1909

Superior Court of Pennsylvania

March 3, 1910

Argued October 18, 1909

Appeal by defendant, from judgment of C.P. Wyoming Co.-1907, No. 51 on verdict for plaintiff in case of Mary Thompson v. The Delaware, Lackawanna & Western Railroad Company.

Trespass to recover damages for death of an illegitimate child seven years old. Before Terry, P. J.

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

Verdict and judgment for plaintiff for $ 779. Defendant appealed.

Error assigned was in refusing to give binding instructions for defendant.

E. K Little and J. H. Oliver, with them D.R. Reese, for appellant. -- The mother of an illegitimate child has no right to recover for injuries resulting in the death of the child Deichman v. Knecht, 11 Northampton, 231; Harkins v. R. R. Co., 11 W.N.C. 120.

Statutes in derogation of the common law must be strictly construed Pettit v. Fretz's Ex'rs, 33 Pa. 118; Smith v. R. R. Co., 182 Pa. 139.

Paul J. Sherwood, for appellee. -- By the act a child begotten out of lawful wedlock may be made as legitimate for all purposes by the subsequent marriage of the parents, as if begotten in lawful wedlock: McCausland's App., 213 Pa. 189.

When the legal status of parent and child is established, the right of the action attaches: Com. v. Henderson, 172 Pa. 135; Com. v. Keystone Ben. Assn., 171 Pa. 465; Com. v. Jones, 4 Pa.Super. 362.

Before Rice, P. J., Henderson, Morrison, Orlady, Beaver and Porter, JJ.

OPINION

ORLADY, J.

The plaintiff recovered a verdict of $ 779, as damages for the alleged negligent killing of her son, aged seven years. The questions involved are, first, the right of a mother of an illegitimate child to recover for injuries sustained by the child resulting in his death, and, second, the question of contributory negligence, which may be first considered and dismissed as without having any merit. This latter branch of the case depended upon controverted facts, and the testimony was of such a character, that under authority of Jones v. Traction Co., 201 Pa. 344, 50 A. 826; Saxton v. Railways Co., 219 Pa. 492; Addis v. Hess, 29 Pa.Super. 505; Distasio v. Traction Co., 35 Pa.Super. 406; Davis v. Railway Co., 222 Pa. 356, it was purely a question for the jury and not for the court to say whether the custodian of the child was guilty in any degree of contributory negligence. The fifth, sixth and seventh points submitted by the defendant were affirmed by the court, and in the general charge this phase of the case was fully and clearly brought before the jury to give proper effect to the conduct of the person who had the child in charge.

The other question is of a more serious character, and we are without direct authority in this state in regard to it. Prior to the act of July 10, 1901, the mother of an illegitimate child could not recover in such a case.

The Act of April 26, 1855, P. L. 309, provides that the persons entitled to recover damages for any injury causing death, shall be the husband, widow, child or parent of the deceased and no other relative. By the Act of May 14, 1857, P. L. 507, it is provided that in any and every case where the father and mother of an illegitimate child or children shall enter into the bonds of lawful wedlock, and cohabit, such child or children shall thereby become legitimated and enjoy all the rights and privileges as if they had been born during the wedlock of their parents. The next step in this remedial legislation is in the Act of April 6, 1868, P. L. 67, which provides, that all marriages theretofore contracted between parties within the degree of affinity as prescribed by act of 1860, of which issue is born, are thereby legalized, and the child or children of such marriages shall have all the rights and privileges of children born in lawful wedlock. This was followed by the Act of June 5, 1883, P. L. 88, which declares that illegitimate children born of the same mother, and leaving as survivors neither mother nor issue capable of inheriting, shall have capacity to take and inherit from each other personal property as next of kin and real estate as heirs in fee simple, in the same manner as children born in lawful wedlock. This was evidently enacted to remedy the effect of Woltemate's App., 86 Pa. 219, in which it was held that the act of 1855 did not enable illegitimate children to inherit from each other. The act of June 14, 1897, amending the third section of the act of 1855, provides, that illegitimate children shall take and be known by the name of their mother, and they and their issue and their mother and grandmother shall respectively have capacity to take or inherit from each other personal estate as next of kin, and real estate as heirs in fee simple; and as respects said real or personal estate, so taken or inherited, to transmit the same according to the intestate laws of this state.

Prior to 1874, a great number of private or special acts of assembly were passed, providing that certain named illegitimate children of certain named parties, " shall be legitimated, and shall have and enjoy all the rights and privileges of children born in lawful wedlock, with the right to inherit and transmit any estate whatsoever."

The next act on the subject is the one which is vital to this case, that of July 10, 1901. It is entitled an act, " to regulate and define the legal relation of an illegitimate child or children, its or their heirs, with each other, and the mother and her heirs." The first section is as follows: " That illegitimate children shall take and be known by the name of their mother, and the common-law doctrine of nullius filius, shall not apply as between the mother and her illegitimate child or children, but the mother and her heirs and her illegitimate child and its heirs, shall be mutually liable one to the other, and shall enjoy all the rights and privileges one to the other, in the same manner, and to the same extent, as if the said child or children had been born in lawful wedlock." The second section provides, " The mother of an illegitimate child, her heirs and legal representatives, and said illegitimate child or children, its or their heirs and legal representatives, shall have capacity to take or inherit from or through each other, personal estate, as next of kin, and real estate as heirs in fee simple or otherwise, under the intestate laws of this commonwealth, in the same manner and to the same extent, subject to the distinction of half-bloods, as if said child or children had been born in lawful wedlock." Section 4 is as follows: " The intent of this act is to legitimate an illegitimate child and its heirs, as to its mother and her heirs; but it is not intended to change the existing laws with regard to the father of such children, or their respective heirs or legal representatives."

The plaintiff was originally married to a man named Ward, who died more than a year prior to the birth of her son, Willie, and after his birth she was married to her present husband. While the action was originally brought in the name of George Thompson and Mary Thompson, the record was subsequently amended by striking therefrom the name of George Thompson, it being conceded that he was improperly joined with the mother as a plaintiff.

In construing the act of 1901 we are aided by many decisions in arriving at a proper interpretation of the legislative will all of its parts are to be taken together, and the legislative intention so ascertained will prevail over its literal import, or its strict letter; the title may be considered, and the construction most agreeable to reason and justice shall be adopted as embodying...