Doescher's Petition , 18 Pa. Super. 346 ( 1901 )

Opinion by

William W. Poster, J.,

The defendant, while coasting upon a bobsled on one of the streets of the city of Pittsburg with some other young men, struck and killed Frederick Weigel, whose wife recovered a judgment for damages for his death. A ca. sa. was issued. The court below on petition ordered the defendant’s discharge. The proviso of the Act of June 16, 1836, P. L. 729, is, “that if the petitioner shall be in custody or imprisonment at the time of such order by virtue of process issued upon any judgment obtained against him in an action founded upon actual force, .... where the damages found by the jury shall exceed one hundred dollars, or if such petitioner shall be afterwards arrested by virtue of process issued upon any such judgment obtained against him previously to such order, he shall not be entitled to be discharged from such imprisonment or arrest until he shall have been in actual confinement during a term of at least sixty days.”

This case does not involve a critical analysis of the meaning of the words “ actual force.” Conceding that actual force was the cause of Weigel’s death, is that force the foundation of the widow’s action for damages ? We answer the question with a negative. At common law the wife had no right of action for injury sustained by her by reason of the death of her husband. Her right of action is founded upon the provisions of the act of April 15, 1851, sec. 19, which provides that she may “maintain an action for and recover damages for the death ” when it has been “ occasioned by unlawful violence or negligence.” The act of April 26, 1855, sec. 1, designates the persons who may recover damages for injuries causing death; provides the method in which the sum recovered shall be distributed among them and that it shall be without liability to creditors. It is thus seen that it was not survivorship of the cause of action in the party injured which the legislature meant to provide, but “ the creation of an original cause of action in favor of the surviving widow: ” Fink v. Garman, 40 Pa. 95. Wherefore, it is manifest that the action of the widow is not “founded upon actual force,” but upon the injury resulting from actual force exerted against another than the plaintiff. The act applies not to such causes of action, but to those founded upon actual force directed immediately against the person or property of the party plaintiff. The rule fixing the measure of damages applicable in a suit by a widow aids this construction. It is not compensation for injuries inflicted by force, but the pecuniary loss suffered by the parties deprived of a relative ; and that loss is what the deceased would probably have earned: Penna. R. R. Co. v. Butler, 57 Pa. 385.

We affirm the order of the court below.