Darbrinsky v. Pennsylvania Co.

Opinion by

Mr. Justice Moschzisker,

On December 13, 1909, the plaintiff’s ten year old son was killed with his father, in a collision between a wagon driven by the latter and a train of the defendant company. In the suit to recover for the death of the plaintiff’s husband (Darbrinsky v. Pennsylvania Co., 247 Pa. 177), we affirmed a compulsory nonsuit, saying, “We cannot regard this case in any other light than that of a driver.......thoughtlessly and carelessly driving right in front of a moving train.” The present action was instituted by the mother to recover damages for the loss of the child who met his death through the contributory negligence of her husband, and raises the following question: the negligence of one parent being a proximate cause of the injury complained of, is the surviving parent barred in law from a recovery against another party who also contributed to the accident?

The question which we have before us never seems to have been passed upon in Pennsylvania under circumstances precisely like those at bar; although, in a number of cases involving the negligent killing of children, where both parents were alive and joined in the action, and the contributory negligence of one of them was shown, we decided that such negligence was attributable to the other parent, and that it formed a complete bar to recovery as against both of them. In Johnson v. Reading City Passenger Ry., 160 Pa. 647, 652, the suit was by the father and mother, and it was held that the contributory negligence of the mother acted as a bar. In Gress v. Philadelphia & Reading Ry. Co., 228 Pa. 482, 486, the suit was by both parents to recover for the negligent killing of two children; it was held that the older child was guilty of contributory negligence and that, since the father had committed the younger child to her care and “the accident occurred through the contributing negligence of the sister, the latter’s negligence must be imputed to the father,” and there could be no recovery. In the recent case of Rapaport v. Pittsburgh Rys. Co., 247 Pa. 347, the suit was by the father to recover damages growing out of injuries to a minor child; we held that the contributory negligence of the mother (although she was not formally named as a plaintiff) barred the action, and judgment was entered for the defendant.

The cases just reviewed cannot be differentiated from the one at bar on the ground that, since in those instances both parents sued, the actions were joint and, therefore, one plaintiff not being entitled to recover, the other could not; for in the last case only one parent appeared as a plaintiff, and in Kerr v. Penna. R. R. Co., 169 Pa. 95, we held that, in cases of this character, the right of action was not jointly in the parents, in the sense that one could never sue to recover for the death of a child without the other joining, but that, where the circumstances justified it, one parent might sue alone. This being so, the joinder of the two parents would not make a suit a joint action in the technical sense oí that term; the mere fact that two join as plaintiffs does not fix the status of the action — there must be a joint right to constitute a common suit a joint action. If, however, the ca,ses cited are attempted to be explained on the theory that they were suits to enforce a joint right, that would not help the present plaintiff, for where a joint right exists each party is bound by the acts of the other, on the theory, of implied authority, to such an extent that one cannot rid himself of the consequences of the other’s acts within the scope of the implied authority; hence, where there is a joint right which begets joint obligations, a failure to perform these obligations by either party will affect the other, even though the suit to enforce the right may be brought by one alone; and the fact that in this particular case the other party lost his life in the course of his failure cannot change the rule. In the cases cited, we do not appear to have discussed the theory upon which one parent was held responsible for the negligent acts of the other, but there is nothing in any of them to indicate that the technical rules applicable to joint actions were at all considered. The true doctrine, and the one upon which the cases, no doubt, turned, is that, while the family relation exists, each parent at all times impliedly authorizes the other to act for him or her in the common care and control of their children, so that each becomes responsible for the acts of the other in that respect, and this implied authority does not rest upon the legal fiction of the unity of husband and wife, but is founded upon the family relation. As before said, the fact that, in the case at bar, the plaintiff’s husband happened to have been hilled in the very accident wherein his own negligence contributed to the death of their child, can make no difference in the decision of the case; his carelessness constituted a proximate cause of the child’s death, and it is imputed to and bars his wife the same as though he were alive and a party to the present action.

Moreover, the fact that the plaintiff rests upon a statutory right to bring her suit can in no way affect the conclusion reached. In several of the cases cited the right to prosecute the action rested upon the same statutory authority invoked in the present case, and in each of these a recovery was denied on the theory of imputed negligence. There was no right at common law to recover damages for negligence causing death (Kerr v. Penna. R. R. Co., supra); this was first conferred in Pennsylvania by the Act of April 15, 1851, P. L. 669 (Sec. 18-19), followed by the Act of April 25, 1855, P. L. 309, which specifies the persons now entitled to recover. While the statutes in question give the right to pursue the wrongdoer, after the death of a person injured, and designate who may bring suit and how the money recovered shall be divided, yet, in each instance the foundation of the claim and the defenses which may be interposed are the same as though the victim of the trespass had not died. In Hill v. Penna. R. R. Co., 178 Pa. 223, 230, we said: “Without these acts the cause of action for a specific act of negligence would have died with the person and there could then be no recovery by anybody; but......under the acts, the action does not die but survives to certain persons named. But it is an action for the samé injury, and upon the basis of the same negligence. The acts accomplished the preservation of a right of recovery, but they do not give, or assume to give, another and additional remedy”; also see Hughes v. Del. & Hudson Canal Co., 176 Pa. 254, 260. In Bradford City v. Downs, 126 Pa. 622, a suit by the father, the injured child died subsequent to the commencement of the action, and after the statute of limitations had run the court permitted an amendment of the declaration which comprehended a claim for loss of service occasioned by the death; we held that the cause of action remained the same and that the amendment was no departure. All of which means that when a suit such as we have before us is brought by parents after the death of a child, the cause of action is just the same as though the victim had been injured and had not died; it is not on the minor’s behalf to recover for the value of his life, but it is an independent action to regain the pecuniary damage suffered by the parents [Penna. R. R. Co. v. Zebe, 88 Pa. 318; Penna. R. R. Co. v. Keller, 67 Pa. 300, 306; Penna. Co. v. James, 81 1/2 Pa. 194]; and, in cases of this character, the fact that the statute keeps alive the cause of action, and confers the right to sue upon the parents, in no sense or manner relieves such parents from the application of the doctrine of imputed negligence, when, as here, one of them through his own carelessness has brought about or contributed to' the loss in suit.

It would serve no useful purpose to review and distinguish the cases from other .jurisdictions which hold that the contributory negligence of one parent does not bar the right of the other to recover for the death of a child; it is sufficient to say that such is not the Pennsylvania rule and that most of these decisions from other states rest upon the peculiar phraseology of, and the construction put upon, their particular statutes. 7 A. & E. Ency. of Law (2d Ed.) 445, states the general rule thus: “Imputable contributory negligence which will bar the plaintiff from recovery exists when the plaintiff, although not chargeable with personal negligence, has been, by the negligence of a person in privity with him, and with whose fault he is chargeable, exposed to the injury which he received through the negligence of the defendant”; and this was quoted with approval and applied in Gress v. Philadelphia & Reading Ry. Co., supra, p. 486. 29 Cyc. 555, thus states the rule: “While in most jurisdictions negligence of parents, or others in loco parentis, cannot be imputed to a child to support the plea of contributory negligence, when the action is for his benefit, yet when the.action is by the parent, in his own right, or for his benefit......the contributory negligence of the parent may be shown in evidence in bar of the action, and this although the action is brought by one parent and the negligence was that of the other,” and in Penna. Co. v. James, 81 1/2 Pa. 202, we said: “A distinction is taken between the case of a father or mother bringing an action for the death of a child, and a child bringing an action for personal injury; ifi the former the contributory negligence of the parent may be used in defense.” We can but conclude that the contributory negligence of the father was properly allowed as a complete defense in the present case.

The assignment of error is overruled, and the judgment is affirmed.