Moe v. Smiley

Opinion,

This record presents a novel question. It was an action in the court below to recover damages for the death of plaintiff’s husband, Augustus Roderick Moe, who was murdered by one Dr. Randolph Lyon. The latter committed suicide within three hours after shooting Moe. The question is whether an action can be maintained against the administrator of the wrongdoer, *140under the act of April 15,1851, and the act of April 26, 1855. These are familiar acts, and it is not necessary to refer to them further than to say that, under the former act, whenever death shall be occasioned by unlawful violence or negligence, the widow of such deceased, or if there be no widow, the personal representatives, may maintain an action and recover damages for the death thus occasioned. The other act, that of 1855, merely designates the persons entitled to recover under the act of 1851.

It is very plain that had Dr. Lyon lived, he would have been liable to an action at the suit of this plaintiff for the loss of her husband’s life, and for its value. He is dead, however, and the question is, does the right of action survive against his estate. The plaintiff in error has cited no authority for such an extraordinary proposition, for the reason doubtless that none can be found. The 28th section of the act of February 24, 1834, P. L. 77, provides as follows: “ Executors or administrators shall have power to commence and prosecute all personal actions which the decedent whom they represent might have commenced and prosecuted, except actions for slander, for libel, and for wrongs done to the person; and they shall be liable to be sued in any action, except as aforesaid, which might have been maintained against such decedent if he had lived.” It will thus be seen that by the express terms of the act of 1834, an executor or administrator cannot sue for injuries to the person of a decedent, nor can an executor or administrator be sued for like wrongs committed by his decedent. This was changed by the act of 1851, above referred to, so far as to allow the widow or personal representatives of a decedent to sue for injuries resulting in death from unlawful violence or negligence, but it goes no further, and does not authorize a suit against the executor or administrator of the person guilty of such violence or negligence. Section 21 of article III. of the constitution - provides that in case of such injuries resulting in death, the right of action shall survive. This provision plainly means that in such cases the right of action shall survive to the personal representatives of the injured party; not that the action may be brought against the executor or administrator of the person whose violence or negligence occasioned the injury. In other words, it is the cause of action, not the liability, that survives.

*141It was urged, however, that this action was not brought for a wrong done to the person of the plaintiff’s husband but to the plaintiff herself by depriving her of her husband, and Penn. R. Co. v. Zebe, 33 Pa. 318; Fink v. Garman, 40 Pa. 97; North Penn. R. Co. v. Robinson, 44 Pa. 175, and Penn. R. Co. v. McCloskey, 23 Pa. 526, were cited in support of this position. Those were all actions brought against railroad companies under the act of 1851 for injuries caused by negligence, and, while there are expressions in some of the opinions which slightly give color to the above contention, they do not sustain it, nor were they intended to. They merely decide that a woman has such an interest in her husband’s life, that when it is destroyed by unlawful violence or negligence, she may recover damages for his death. This is by virtue of the act of assembly: the right did not exist at common law; hence she takes no rights except those expressly given by the statute, and the right to sue the executor or administrator of the wrongdoer is not among them. It is idle to say that when a man is killed by unlawful violence it is not an injury to his person. It is for just such injuries that the act of 1851 gives the right of action to the widow, and it gives it to her because the death of her husband is a pecuniary loss to her. Indeed, it is difficult to see how the act of 1851 can be sustained upon any other grounds. And had the act gone further and given the right of action against the executor or administrator of the wrongdoer, this suit could have been sustained. But neither under the statute nor at common law can she recover in this case.

Judgment affirmed.