Kerr v. Pennsylvania Railroad

Opinion by Mr. Justice Fell, The question raised by the demurrer is whether a married woman who has been deserted by her husband can maintain an action in her own name to recover damages for the death of their minor child. It is alleged in the statement filed that the death of the plaintiff’s minor son was caused by the negligence of the defendant, that she is-the only person entitled to recover for his death, as her husband, the father of the boy, had deserted her and their son more than eight years before the commencement of the suit and through drunkenness and profligacy lias failed and refused to provide in any way for either of them. The right to recover damages for negligence causing death does not exist at common law. It was first conferred in this state by the Act of April 15, 1851, P. L. 674. The Act of April 25, 1855, P. L. 309, specifies the persons entitled to re [97] cover. The fourth section of the act provides: “ The persons entitled to recover for any injury causing death shall be the husband, widow, children or parents of the deceased, and no other relatives.” The second section of the Act of May 4,1855, P. L. 480, provides that “ Whenever any husband from drunkenness, profligacy or other cause shall neglect or refuse to provide for his wife, or shall desert her, she shall have all the rights and privileges secured to a feme sole trader under the Act of February 22,1718, ... .” etc. The third section provides that “ Whenever any husband or father from drunkenness, profligacy or other cause shall neglect or refuse to provide for his child or children, the mother of such children shall have all the rights and be entitled to claim and be subject to all the duties reciprocally due between a father and his children, and she may place them at employment and receive their earnings, or bind them to apprenticeship, without the interference of suchhusband, the same as the father can now do by law.” The act of 1718, 1 Sm. L. 99, above referred to, confers upon feme sole traders the right to sue “ during their husbands’ natural lives without naming their husbands in such suits.” There can be no doubt of the power of the plaintiff to sue without joining her husband to recover any claim due her in her own right. The Act of May 4, 1855, conferred upon her the common law rights and duties of her husband in relation to their child. She could have placed him at work and have received his wages, and was bound to the reciprocal duties of maintenance and education. Her legal relation to her son was the same as if her husband hacl been dead. It is out of this relation that the right to recover in an action for the death of a child grows. The measure of damages is the pecuniary loss sustained, and the loss arises because-of the right of the parent to the child’s earnings, until he is of age, or of the expectation of pecuniary advantage after the minority of the child because of the continued existence of the family relation. The father here had forfeited all right to his son’s earnings; the mother alone was entitled to them. She alone could sue for and recover them. The pecuniary loss resulting from the child’s death was wholly hers. If the father had not been living at the time of the son’s death the wife’s right to maintain this action could not be questioned; if she had not been living [98] at that time it is doubtful whether he could have recovered, because the family relation between him and his son had ceased to exist and he had forfeited all right to the son’s earnings. The force of the objection that the action cannot be maintained by one of the parents is in the fact that the right is purely statutory and is given to both. It is generally true that where the right is joint the action must be joint, and the nonjoinder of one who ought to be a co-plaintiff is fatal. This is the case in actions ex contractu and where the form of the action is in tort, but the liability1" springs from a joint contract or interest. The reason of the rule is that the plaintiff suing is not entitled to the whole recovery and knows who is joined in interest with him. The rule does not apply to actions purely ex delicto. In them any one of several having a right to sue may do so separately. We have in this case a right of action given to two and the right of recovery limited by the facts to one. Must the right in the party entitled be defeated because the other will not join or in his absence cannot be made a party ? The loss for which a recovery is provided by the Act of 1851 is that resulting from the severance of the family relation, and the recovery is not in all cases for the benefit of the party suing only. The Act of 1855, while specifying the persons entitled to sue, provides that the declaration shall state who are the persons entitled to recover, and that “ the sum recovered shall go to them in the proportions they would take his or her estate in cases of intestacy.” In Huntingdon and Broad Top R. R. Co., v. Decker, 84 Pa. 425, the present chief justice said: “ If the deceased leaves a husband, he alone is clothed with the right of action; if the wife is the survivor, she is entitled to bring suit; if there be neither surviving husband nor widow, the right of action is given to the children, and if there be neither husband nor widow nor children surviving, it is given to the parents of the deceased. But while the right of action is given, according to the circumstances of each case, to one of the four designated parties, it is clear from the wording of the act that the entire sum recovered is not always to be retained by the plaintiff in his or her own right. It is to be distributed among the relatives named in the proportion they would be entitled to take the personal property of the deceased in case of intestacy; and to the end that it may appear who are entitled to partici [99] pate in the damages recovered it is required that the declaration shall state who they are. In the present ease the widow had the right of action, not exclusively for her own use, but for the joint use and benefit of herself and children.” In this case the wife alone has a claim upon which a recovery in damages'can be sustained. Her right should not be defeated by the misconduct of her husband. Upon the trial she will have to establish her right to maintain the action in her own name, or fail. In the absence of the husband, or of notice to him, his right to participate in the distribution of the fund recovered cannot be finally determined against him. Whatever right he has may be preserved by the court controlling the distribution until he shall have had a hearing. I desire to add that I sat at the argument of this ease in the common pleas, and fully assented to the judgment which was afterward entered by my colleagues. Upon further reflection I am satisfied that the demurrer should have been overruled, and that the error to which I contributed my full share should now be. corrected by reversing the judgment. The judgment is reversed with a procedendo.