Thompson v. Peck

• Decision Date: 25 November 1935
• Docket Number: 155
• Parties: Thompson et al. v. Peck et al., Appellants
• Court: Pennsylvania Supreme Court

181 A. 597

320 Pa. 27

Thompson et al. v. Peck et al., Appellants

No. 155

Supreme Court of Pennsylvania

November 25, 1935

Argued October 15, 1935

Appeal, No. 155, March T., 1935, by defendants, from order of C.P. Allegheny Co., Oct. T., 1934, No. 2943, in case of James Thompson, a minor, by his father and next friend, Clarence Thompson et al. v. Byrde Peck et al., executors of estate of Robert A. Peck, deceased. Order reversed; writs quashed, and service and all proceedings subsequent thereto reversed and set aside.

Trespass for personal injuries.

The opinion of the Supreme Court states the facts.

Petition allowed, amending caption of case by designating executors of stated defendant as parties defendant. Alias writ of summons served on substituted defendants. Petition and rule by substituted defendants raising question of jurisdiction dismissed, before E. W. MARSHALL, McNAUGHER and SMITH, JJ opinion per curiam. Defendants appealed.

Error assigned was dismissal of petition and rule raising question of jurisdiction.

The order of the court below is reversed; the writs are quashed and the service and all proceedings subsequent thereto are reversed and set aside.

Samuel G. Wagner, of Wagner & Wagner, with him George Y. Meyer, for appellants.

Benjamin B. Crone, of Levy & Crone, with him Kivie Wolfe, for appellees.

Before FRAZER, C.J., KEPHART, SCHAFFER, MAXEY, DREW, LINN and BARNES, JJ.

OPINION

MR. JUSTICE DREW:

On September 20, 1934, plaintiffs instituted this action of trespass against H. A. Peck to recover damages for personal injuries alleged to have been suffered by the minor plaintiff as a result of Peck's negligence. The writ was returned nihil habet. Thereafter plaintiffs discovered that Peck had died on December 3, 1933, and that letters testamentary had been issued to the executors named in his last will and testament. On December 22, 1934, the plaintiffs petitioned the court to amend the caption of the case by substituting the executors as parties defendant, which petition was allowed. On January 21, 1935, an alias writ of summons was issued, and the executors, the present defendants, were duly served therewith. Alleging that the court was without jurisdiction to permit the amendment, defendants later petitioned to have the order of amendment vacated and for an order quashing the writs. A rule to show cause was granted and subsequently discharged. This appeal followed.

At the time of Peck's death plaintiffs had a claim against him for personal injuries alleged to have been caused by his negligence. The action was a personal one and at common law it would have perished with the death of the wrongdoer. To remedy the injustice that resulted from the common-law rule whereby an injured party was denied all relief in the event of the wrongdoer's death prior to the commencement of suit against him, statutes were passed from time to time providing for the survival of the cause of action. The provisions of these statutes have been reenacted and supplemented by section 35 (b) of the Act of June 7, 1917, P.L. 447, as amended by the Act of March 30, 1921, P.L. 55, and the Act of May 2, 1925, P.L. 442. That section, as so amended, provides in part as follows: "Executors or administrators . . . shall be liable to be sued . . . in any [personal] action . . . which might have been maintained against such decedent if he had lived. All such rights of action which were not barred by the statutes of limitation at the time of the death of decedent may be brought against his executors or administrators at any time within one year after the death of the decedent, notwithstanding the provisions of any statutes of limitations whereby they would have been sooner barred." Upon Peck's...