Pa.)

803

"The able counsel for plaintiff cites and relies with much apparent confidence on the following cited and other cases: Lewis v. Turnpike Co., 203 Pa. 511, 53 Atl. 349, 93 Am. St. Rep. 774, where Mr. Justice Mitchell said: "The act first gives the right of action and then prescribes the mode of distribution of the sum recovered, but that necessarily means distribution among those entitled to sue. It would be absurd to suppose that in the same sentence the statute meant to give part of the damages to those to whom it had denied the right of action.' We think the We think the counsel draws an erroneous conclusion from this language. It refers mainly to the question of distribution, and what is said about the right to sue refers to those who under certain conditions have that right. If the widow be dead, the children have a right to sue. A portion of the damage belongs to them, and they are interested in the distribution. But the language of Mr. Justice Mitchell does not mean that the children are parties to the suit of the widow except that they are to be named in the declaration for the purpose of distribution.

"We also think the language of Mr. Justice Sterrett in Birch v. Railway Co., 165 Pa. 339, 30 Atl. 826, does not bear the construction put upon it by plaintiff's counsel. Counsel argues from that authority that, even where the widow survives, the children have the right to maintain an action. This view is in conflict with the act of 1855 and with the adjudicated cases thereon. The children do not have the right to sue and carry on an action while the widow is alive. Counsel also cites Lehigh Iron Co. v. Rupp, 100 Pa. 95, but we do not think that case sustains plaintiff's contention. On page 99, Mr. Justice Trunkey, speaking for the Supreme Court, said: 'When a husband or wife recovers damages, and there are children of the deceased, the provisions of the statute for distribution under the intestate law apply, and strictly accord with the main object of the statute, which is a remedy for the loss to the family.' That case concedes that the suit is to be brought and carried on by the husband or wife, but that the children are interested in the distribution, and it does not sustain the proposition that the children are necessary parties to the action. The learned counsel also cites a number of cases where the widow and children were joined as plaintiffs, but they must and do concede that the authoritative decisions of the Supreme Court are that the sui should be brought in the name of the widow while she survives.

a decision by the late Judge Simonton in Styles v. Steel Co., 2 Dauphin Co. R. 257, and 7 Del. Co. R. 456. That case is not binding upon us, although we entertain great respect for a decision of that able judge. The case is not well reported, but it seems to have been an attempt on the part of the widow to discontinue an action brought to recover damages caused by the death of the husband and father. What Judge Simonton really decided was that the widow could not discontinue the suit. It must be borne in mind that when the action is pending it is always within the discretion of the court whether or not the plaintiff shall be allowed to discontinue it. There may have been strong reasons why that case was not allowed to be discontinued. The widow might have been moved by improper motives. proper motives. It must be and is conceded that the children have an equitable right or title to their shares of the damages recovered by the widow, and, if she does not recognize their rights, she will be declared a trustee of the fund upon a proper application to a court of equity having jurisdiction of the parties. Allison et al. v. Powers, 179 Pa. 531, 36 Atl. 333; Lewis v. Turnpike Co., 203 Pa. 511, 53 Atl. 349, 93 Am. St. Rep. 774.

"In support of the judgment of the court below we do not see that much can be added, with profit, to the lucid opinion of Judge McClure in support of his decision. In that opinion he refers to and cites a large number of cases from courts of other states arising under statutes more or less similar to ours. The great weight of those authorities in Tennessee, Rhode Island, Minnesota, Mississippi, etc., is in support of the conclusion that the widow in the present case had the power to make the compromise and settlement in question. As showing the view of another common pleas judge, the case of Toole v. Jones, 32 Pittsb. Leg. J. 387, is cited. In that case the court said: "The statute having invested the widow with the power to bring suit for herself and children, she could compromise and settle the claim without suit when it is done fairly'-in which case she would be accountable to the children for twothirds of the amount received just as though she had recovered at the end of a suit. Much importance is attached by appellant's counsel to some cases decided by the Supreme Court of Texas, and also cases under a similar statute of the territory of Arizona. These cases held that the widow could not remit any portion of a verdict in favor of the beneficiaries (Southern Pacific Co. v. Tomlinson, 163 U. S. 369, 16 Sup. Ct. 1171, 41 L. Ed. 193); the Texas cases holding that the widow had no power under the statute of that state to com. promise or release the rights of her minor children. As we understand the statutes referred to, they require a specific finding by the jury in favor of each beneficiary, and

"We have been referred to an interesting opinion by District Judge Archbald in Paolo V. Laquin Lumber Co., in the Circuit Court of the United States for the middle District of Pennsylvania. That was an action to recover damages under our acts of 1851 and 1855, and we are much impressed with the reasoning of that able judge, and he reaches a conclusion, expressed as follows: "The right to compensation for the death of a person rises no higher than that of the one who is authorized to sue for it; and, the right to sue being given by the statute to the widow who is living, no other is qualified. The children have no interest except in the damages which she recovers, and only after she has recovered them. There is no severable share which entitles either of them by himself, as here, to a direct and separate cause of action. It is true that in Toole v. Jones, 32 Pittsb. Leg. J. 387, a suit was sustained in the name of the wife for the use of the children, after she had settled and released her individual damages; but, if that is to be taken as opposed to the views which are here expressed, it is contrary to what was decided in Marsh v. Western New York & Penna. R. R. Co., 204 Pa. 229 [53 Atl. 1001], and is therefore no authority. In the Marsh Case, also, the widow refused to prosecute, which would seem to present as strong a ground for allowing the child to sue for itself, as where she herself is qualified; and yet it was held insufficient to do so.'

"District Judge Rand in the Circuit Court of the United States for the Southern District of New York, in the case of Conover v. Penna. R. R. Co., 176 Fed. 638, held as follows: 'It is quite clear under the law of Pennsylvania that the widow alone is the person in whom the right of action is vested. (Citing several Pennsylvania authorities.) All the proceeds she holds in trust for herself and children; but there is no provision anywhere in the statute by which the interest of the children may be apportioned in the action, and the proceeds are to be turned over to her for distribution. I think that payment to her, or settlement with her, was an effective bar just as it is in the case of any other trustee, and that the person who deals with her need not follow the application of the proceeds.' The judge then refers to the case of Southern Pacific Co. v. Tomlinson, 163 U. S. 369, 16 Sup. Ct. 1171, 41 L. Ed. 193, and points out why that decision does not apply under the Pennsylvania statutes: 'In the first place, they were all parties to the record, a procedure which was permitted by the statute. The widow, was therefore in the position of trying to compromise the interests of other parties to the record than

statute, the jury has assessed separately the recoveries for each of the parties plaintiff, and it is obvious that the widow, being only one of the parties plaintiff, had no right to interfere with the rights of any other than herself. In view of the fact that the Pennsylvania courts do not admit the children as parties plaintiff at all, that case has no bearing upon the Pennsylvania statutes.'

"It is argued with much earnestness that the view taken by the court below upholding the right of the widow to compromise and settle the claim might result in the children losing their two-thirds of the recovery. This is true. But it is a legislative rather than a judicial question. Under the act of 1855, as construed by our Supreme Court, the children are not parties to the suit, but are only required to be named in the declaration for distributive purposes. It does seem that the statutes which allow the person, who is only entitled to one-third of the recovery, to settle and adjust the claims of those entitled to the other two-thirds is faulty; but this can only be remedied by the Legislature.

"Notwithstanding the very able and earnest argument and reargument of this case on the part of the able counsel for the appellant, we are not convinced that the court below erred in entering judgment for the defendant non obstante veredicto.

"The assignments of error are dismissed, and the judgment is affirmed."

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and MOSCHZISKER, JJ.

Grant Herring and F. S. Wagenseller, for appellant. C. E. Sprout and Charles P. Ulrich, for appellee.

PER CURIAM. The judgment is affirmed on the opinion of the Superior Court.

(232 Pa. 592)

CITIZENS' GAS CO. OF PORT ALLEGHE

NY v. WHITNEY et al.

(Supreme Court of Pennsylvania. July 6, 1911.) 1. APPEAL AND ERROR ($ 969*)-REVIEWDISCRETION OF TRIAL COURT-SEVERANCE OF TRIAL.

The trial court's discretion in ruling on a motion for severance in ejectment will not be reversed unless there has been an abuse in the exercise of that discretion.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3845; Dec. Dig. § 969.*] 2. ACTION (8 60*)-SEVERANCE.

In ejectment, a severance is properly refused where the return to the writ shows both defendants to be in possession of the premises, one as lessor of the other, and they file a joint appearance and joint answer, setting up the privity of title, and prepare all their pleadings with a view to a joint defense, and there is no reason for not permitting such defense.

[Ed. Note.-For other cases, see Action, Cent. Dig. 88 699-707; Dec. Dig. § 60.*]

John G. Johnson, W. E. Burdick, and F. P. Schoonmaker, for appellants. J. E. Mullin, D. H. Jack, and Sheridan Gorton, for appellee.

ELKIN, J. This is an action of ejectment to determine the title and recover the possession of the oil and gas in and under certain lands described in the writ. The plaintiff never took actual possession of the land under its deed for the purpose of operating for oil and gas, but this is not a bar to its right to recover possession, as was decided in Barnsdall v. Bradford Gas Co., 225 Pa. 338, .74 Atl. 207, 26 L. R. A. (N. S.) 614. The suit having been properly brought, the only question for our determination is whether error was committed at the trial.

[1] The first assignment relates to the refusal of the trial judge to grant a severance upon the petition of the Bradford Gas Company. The general rule is that the granting of a severance in civil suits of this character rests in the discretion of the trial judge, and his ruling will not be reversed unless there has been abuse in the exercise of that discretion.

[2] We fail to find any such abuse of discretion in the present case as to warrant a reversal on this ground. The defendants filed a joint appearance and a joint answer and prepared all their pleadings with a view to making a joint defense. Certainly under such pleadings it cannot be said that one of the defendants was 'entitled to a severance as a matter of right. The Bradford Gas Company was a lessee of Whitney and necessarily stood upon the title of its lessor. If Whitney had no title, his lessee acquired no right or privilege. The return to the writ showed both defendants to be in possession of the premises. The joint answer of the defendants sets up the privity of their title which they undertake to assert and defend. There is nothing unusual about this joinder of defendants in actions of ejectment. The act of March 21, 1772 (1 Smith's Laws, p. 370), provides that the landlord may defend with the tenant who has been sued in ejectment, while the act of May 8, 1901 (P. L. 142), clearly contemplates that all claimants to the premises, whether in possession or not, shall be made parties to the writ. The trend of decision and of statutory procedure in recent years, while requiring one in possession to be made a party, recognizes and approves the practice of joining all parties claiming title to or interest in the premises, and as a general rule this may be done without respect to privity of title or unity of interest. See Warvelle on Ejectment, § 96, and following pages. In the case at bar both defendants are in possession. They appeared

to have the whole controversy settled in one trial. The learned trial judge was clearly right in refusing to grant a severance.

[3] The question of title involved here depends upon whether Whitney and the Bradford Gas Company had notice, actual or constructive, either or both, of the deed from Sherwood to the appellee company. This deed was executed first in point of time but was not recorded until after the deed to Whitney had been executed and recorded. If Whitney was a bona fide purchaser of the premises without notice of the unrecorded deed, he took a good title. If, on the other hand, he had notice of the outstanding unrecorded deed to appellee, he was bound by that notice, and took the risk of that being a valid conveyance. All of this was a question of fact to be determined by the jury under proper instructions by the court. The question was submitted to the jury, and the verdict shows that they believed both Whitney and the Bradford Gas Company had notice of the conveyance to appellee at the time of their respective purchases. The evidence was sufficient to warrant such a finding. Indeed, upon a review of the whole record we do not see how any other conclusion could be reached. There is only one error called to our attention by the assignments which has any substantial merit. The evidence of Whitney shows that at the time of making the lease to the Bradford Gas Company he gave notice that the appellee company had a deed for the oil and gas in the premises and that the deed was then on record. There is no doubt as to the testimony of Whitney. and the only question is whether it could be considered as affecting the rights of the Bradford Gas Company.

[4] The plaintiff called Whitney as if on cross-examination. The court ruled it was proper to do so, but that his testimony on such cross-examination should in no wise affect the Bradford Gas Company. To that part of the ruling limiting the effect of the testimony upon the Bradford Gas Company the plaintiff excepted and a bill was sealed. The examination of the witness was then proceeded with at length. He was first examined by counsel for plaintiff, then crossexamined by counsel for the Bradford Gas Company, and then re-examined on every phase of the question relating to the subject of notice. While the court had ruled that his testimony should not affect the Bradford Gas Company, counsel for this company undertook on cross-examination to elicit answers tending to show that the witness, Whitney, had not given any such notice. In other words, the parties themselves treated the witness as competent for all purposes and so conducted the examination. The court erred in its ruling limiting the effect of the