Books v. Borough of Danville , 95 Pa. 158 ( 1880 )

Mr. Justice Green

delivered the opinion of the court,

The maxim actio personalis moritur cum persona, was abrogated in Pennsylvania in cases of injuries resulting in death, by legislation, prior to the adoption of the Constitution of 1873. The Act of 15th April 1851 gave a right of action for such injuries to the personal representatives of the deceased. The effect of that act was to make the damages recovered in such actions general assets of the deceased in the hands of the representatives, and of course they were available to creditors in the first instance. It followed that in all cases of insolvent estates of such deceased persons, where the victim of the injury was a husband and father, the widow and children derived little or no advantage from the action, although they were the persons most directly and severely injured. Hence it was that a change was made, and by a new act passed 26th April 1855, the right of action for such injuries was taken away from the personal representatives of the deceased, and conferred only upon parents for the loss of children, and children for the loss of parents, and reciprocally upon husband and wife. So far as this subject is concerned, this was the condition of the law in 1873, when the present Constitution was adopted. Of course as this right of action was derived from legislative enactment it might, in the same mode, be taken away. To prevent this being done a special provision was incorporated in the organic law, declaring that in cases of death resulting from injuries “ the right of action shall survive, and the General Assembly shall prescribe for whose benefit such actions shall be prosecuted.” Since the adoption of the Constitution no new legislation has been enacted on this subject. It is plain, therefore, that the Act of 1855 prescribing the persons “ for whose benefit such actions shall be prosecuted,” is still the law. No other persons have been clothed with the right, and hence no other persons can sustain such actions. The present action is brought by an administrator to recover damages for injuries resulting in the death of the intestate. But the legislature has not declared that such a person may maintain such an action, and hence the right to do so does not exist. The designation of the persons for whose benefit such actions shall be prosecuted is expressly referred to the action of the legislature by the language of the Constitution. No such law has been enacted, and hence the inference is irresistible that the persons who may now exercise that right are those, and those only, who could do so at the time of the adoption of the Constitution.

It is argued, however, that such a right exists in the personal representatives, because of the provision in the Constitution that “ the right of action shall survive.” The argument submitted in support of this provision is ingenious, but in our judgment it is entirely fallacious. The provision of the Constitution, coupled as it is, in the same sentence, with the direction that the legislature shall declare who shall exercise the right, would be conclusive that the right itself is a limited one, to be put in force only for certain persons to be prescribed by the legislative body. Hence the inference is not warranted that the right of action is a general one to exist independently of, or without, the appropriate legislation. This conclusion is much strengthened by another consideration of still greater force. The argument is, as it must be, that the personal representatives may recover for the injuries to the person of the deceased, and other persons may recover for the death. Unfortunately for that position, it is not the fact that two separate and independent rights of action are given. The language is, “ and in case of death from such injuries the right of action shall survive,” &c. What right of action ? Manifestly the right to recover damages for the death of the person killed. No other cause of action is created. It is one right, not two, and its very existence, as a right of action at all, is absolutely dependent upon the fact of death. For the injuries preceding the death and independently of it, no right of action is given, and hence there is none to survive. The opposing argument assumes that it exists, and upon the basis of that assumption infers the survival. But the assumption is unwarranted, and, therefore, the inference can not be made. Moreover, it is too plain for argument that the deceased person never had, or could have, a right of action in advance of his death for damages resulting only from his death, and, therefore, again, as the right in him never existed, it could not survive to his representative. In the case of Mann v. Wieand, 4 W. N. C. 6, we held that, the right of action for damages from death by negligence never existed in the deceased; that it was given to, and first existed, in the widow, and hence the defendant was a competent witness in his own behalf in an action against him by the widow. The same principle applies here. We are of opinion that the nonsuit in the court below was properly entered.

Judgment affirmed.