Western Union Tel. Co. v. Preston

• Decision Date: 27 November 1918
• Docket Number: 2396.
• Citation: 254 F. 229
• Parties: WESTERN UNION TELEGRAPH CO. v. PRESTON.
• Court: U.S. Court of Appeals — Third Circuit

254 F. 229

WESTERN UNION TELEGRAPH CO. v. PRESTON.

No. 2396.

United States Court of Appeals, Third Circuit.

November 27, 1918

W. B Linn, of Philadelphia, Pa., for plaintiff in error.

Hugh Roberts, of Philadelphia, Pa., for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

WOOLLEY Circuit Judge.

Preston a telegraph lineman in the employ of the defendant below, was injured in September, 1905. He died in October, 1915.

Preston brought no suit for damages during his life. His widow brought this action within one year after his death. She alleged, and the jury found, that her husband's injuries were due to negligence of the defendant and that his death was occasioned by the injuries he had sustained.

The action is brought under statutes of the commonwealth of Pennsylvania, which read:

'Whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased, or if there be no widow, the personal representatives may maintain an action for and recover damages for the death thus occasioned. ' Act of April 15, 1851 (P.L. 674) Sec. 19.

'The declaration shall state who are the parties entitled to such action; the action shall be brought within one year after the death, and not thereafter. ' Act of April 26, 1855 (P.L. 309).

Preston's right of action at the time of his death was barred by a statute of limitation.

We have been referred to no decision by a court of Pennsylvania construing the Act of April 15, 1851, with reference to a situation similar to the one presented by the facts in this case. Reluctant as we are to impose upon a state statute the interpretation of a Federal court, we find ourselves called upon nevertheless to construe the statute on which this action is based, in order to decide the first question raised by the defendant on this writ of error. This question is: Whether the statute affords a widow a right of action for the death of her husband occasioned by negligence, where, at the time of his death, his right of action for the same negligence was barred by a statute of limitation.

The evident purpose of the Pennsylvania statute, in giving a right of action after death occasioned by negligence, was to remove the hardship of the common-law rule-- 'actio personalis moritur cum persona.' This rule was changed in England by the Act of 9 and 10 Vict. chapter 93, section 1, known as 'Lord Campbell's Act,' which gave such an action to certain designated persons injured by the death. The relevant parts of the act are set out in the margin. ^[1]

The distinguishing features of Lord Campbell's Act have been re-enacted by many states in statutes which preserve, though in varying forms of expression, its original purpose. Among the states that have used the English Act as a model in changing the common-law rule is the Commonwealth of Pennsylvania. Hill v. Penna. R.R.

Co., 178 Pa. 223, 231, 35 A. 997, 35 L.R.A. 196, 56 Am.St.Rep. 754.

Differences in the language of the American and English statutes have in many instances caused differences in their interpretation, not with reference to the main object of giving a new action after death, but with reference to the nature of the action and the circumstances under which it can be enforced.

While at first there was much judicial dispute as to the precise nature of the action conferred by Lord Campbell's Act and by American statutes modeled upon it-- whether it was a new action or the continuance of the action of the person injured, whether it was cumulative upon the action of the person injured, thereby imposing a double liability in the sense of permitting double recoveries for the tort, whether the action was on the death or on the tort--the courts in England and America have now decided beyond profitable controversy that the new action given by such statutes is not a continuance of any right of action which the injured person would have had except for his death, but is 'a new or independent cause of action,' founded on a new grievance, and is awarded 'for the purpose of compensating certain dependent members of the family (of the injured person) for the deprivation, pecuniarily, resulting to them from his wrongful death,' Michigan Central R.R. Co. v. Vreeland, 227 U.S. 59, 69, 33 Sup.Ct. 192, 195 (57 L.Ed. 417, Ann. Cas 1914C, 176); or, stated substantially in the language of the English decisions, the act does not transfer the right of action of the injured person to his widow or other designated person, but gives to such person a totally new right of action, on different principles, Blake v. Midland Ry. Co., 18 Q.B. 93, 109; Seward v. The Vera Cruz, 110 App.Cases, 59. While it is thus decided that the new action is for the death and is independent of the husband's common-law action for his injury, the courts have gone further and have decided with equal finality, that 'the cause of action contemplated by the statute is the tort which produces death and not the death caused by the tort. ' Centofanti v. R.R. Co., 244 Pa. 255, 262, 90 A. 558, 561; Michigan Central R.R. Co. v. Vreeland, supra. In arriving at these decisions, we discern a clear distinction made by the courts between the right of action after death given by the statutes and the cause of action on which such right of action may be enforced. This distinction has, we believe, a controlling bearing on the question before us for decision.

Referring for convenience to the two rights of action respectively as the widow's right of action and the husband's right of action, it is now the law, that, although the widow's right of action is wholly independent of that of her husband, it is dependent on the original wrongful injury inflicted upon him. Both rights of action spring from the same tort, therefore the same tort is the cause of action for both. The tort being the basis of both actions, the courts have held with entire consistency that the widow's right to recover in her action for the wrong done her by occasioning her husband's death depends primarily on the liability of the wrongdoer to her husband for the wrong done him. Liability for the tort is affected of course by the character of the tort, and it may even be destroyed by the injured husband in a way that will altogether deprive his widow of a cause of action to sue upon. The tort, as a cause of action enuring to the widow, is affected by considerations of the husband's assumption of risk and contributory negligence, and of negligence of a fellow servant. Liability for the tort may be released by the husband before its commission, as under a contract involving a release to a carrier from liability for future negligence of its servants, Perry v. P.W. & B.R.R., 24 Del. 399, 77 A. 725; and by his acceptance of a free pass similarly releasing liability, Northern Pacific Ry. Co. v. Adams, 192 U.S. 440, 24 Sup.Ct. 408, 48 L.Ed. 513, reversing C.C.A. Ninth Circuit, 116 F. 324, 54 C.C.A. 196. Liability for the tort may also be released by the husband after its commission by his acceptance of compensation for the injury he has sustained. Hill v. Penna. R.R. Co., 178 Pa. 223, 35 A. 997, 35 L.R.A. 196, 56 Am.St.Rep. 754.

If the wrongdoer has never been legally liable for the wrong or if he has in any way been acquitted of the wrong, then the tort is no longer a cause of action on which the widow can prosecute her statutory right of action, and this is for the reason that the widow succeeds to her husband's cause of action--the tort-- with all its infirmities, those that are inherent, and those that have been imposed upon it by her husband.

What infirmity is there in the tort in this case, considered purely as a cause of action, that precludes the widow from asserting her right of action? The defendant says that the husband had lost his right of action on the tort prior to his death because of the bar of the Statute of Limitations, and for that reason the widow also has lost her right of action. But the Statute of Limitations operated against the husband's right of action, not against the tort, the cause of action. That admittedly stood unaffected by any act of his. When he died without suing, the husband left the tort just as it was when it was committed, though he left the wrong done him unredressed. But upon his death a new injury was occasioned by the same tort, this time to the widow. For redress of this injury, the statute gave her a new and altogether independent right of action, if the cause of action, the tort that occasioned the death, still existed. The question is, Did it still exist? We think it did. The husband had done nothing to it, and had done nothing that affected it; he simply permitted a statute of limitation to deprive him of his right to sue upon it. The statute that deprived him of his right of action was not applicable to the widow's right of action. Being inoperative against her, it deprived her of nothing. In this situation the husband died.

We are of opinion, that the right of action afforded the widow by the Pennsylvania statute, though dependent on the original wrongful injury to the husband, is not dependent by implication on her husband's right of action not being barred by a statute of limitation at the time of his death and that, in consequence, the plaintiff in this case was not barred of her action. Opposed to this opinion, counsel for the defendant cited with confidence decisions of courts in a number of states in harmony with a view expressed by the Supreme Court of the United States with reference to the right of action afforded by various statutes modeled after Lord Campbell's Act, in Michigan Central R.R. Co. v. Vreeland, 227 U.S. 59, 70, 33 Sup.Ct. 192, 196 (57...