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(232 Pa. 641)

“In the present case, after the widow had SHAMBACH v. MIDDLECREEK ELEC- brought the action to recover damages for TRIC CO.

herself and the nine children of the deceased, (Supreme Court of Pennsylvania, July 6, and had named the latter in the declaration, 1911.)

as required by the act of 1855, she, on DeDEATH (25*)—SUIT BY WIDOW-COMPRO-cember 10, 1907, in consideration of $750 paid MISE.

Under Act April 15, 1851 (P. L. 669), giv- to her by the defendant, executed and deliving an action for wrongful death, and Act April ered, under her hand and seal, a release and 26, 1855 (P. L. 309), on the death of a hus- discharge of the defendant from all claims band, the right of action is in the widow, and and demands of any kind for or by reason of, her minor children are not necessary parties, and she has a right to compromise the claim or in any way growing out of, the accident, when she does so in good faith, without the or death of said Henry Shambach. Thereconsent of the guardian of the children.

after it was sought at the trial of the case to [Ed. Note. For other cases, see Death, Cent. recover, notwithstanding this release, the Dig. $ 27; Dec. Dig. $ 25.*]

proportion of the damage claimed by the chilAppeal from Superior Court.

dren, to wit, two-thirds of such sum as might Action by Ida Shambach against the Mid- be allowed by the jury. It is conceded that dlecreek Electric Company. From a judg- the widow favored such recovery. The dement of the Superior Court, affirming a judg- fendant's counsel offered said release in evment for defendant notwithstanding the ver-idence and claimed that it ended the suit; in dict, plaintiff appeals. Affirmed.

substance, that the widow having the statuThe opinion of Morrison, J., in the Supe-tory right to bring and carry on the suit, and rior Court, to which, Henderson, Orlady, and recover damages allowed by the court and Beaver, JJ., dissented, was as follows:

jury, necessarily had the right to compro“This is an action of trespass based on the mise and settle the suit for a good and raludeath of Henry Shambach, caused, as alleged, able consideration. The trial judge admitted by the negligence of the defendant. The ver- the release in evidence, notwithstanding the dict of the jury has settled the question of objection of plaintiff's counsel, and noted an the defendant's negligence and the lack of exception and sealed a bill for plaintiff, recontributory negligence by the deceased, and serving the question of the effect of the rethese questions are not raised in this appeal. lease, and submitted the case to the jury, and

"The deceased was survived by his widow, the result was a verdict in favor of the Ida Shambach, and nine children, named in plaintiff for $1,320.80 for the use of the chilthe declaration, all, or nearly all, of them mi- dren. Thereupon defendant's counsel moved nors. By the Act of April 15, 1851, P. L. 669 the court for judgment non obstante vere(see section 19, p. 674), an action is given for dicto, and upon argument and consideration the death of a person when caused by unlaw- | the court subsequently granted such judgful violence or negligence; and by the Act of ment for the defendant. To this judgment April 26, 1855 (P. L. 309), the persons en

the plaintiff excepted, and the court sealed a titled to recover are the husband, widow, bill of exceptions as required by the Act of children, or parents of the deceased, the sum April 22, 1905 (P. L. 286). recovered going to them in the proportion

"We do not understand that any question they would take the personal estate of the is raised as to the sufficiency of the release deceased in the case of his or her intestacy. to end the case, provided the widow, plainThese acts determine the right to recover, tiff, had the power to compromise the claims which does not exist at common law and has of the children and release their rights. It no existence outside of them. It has been de- thus appears that the single question now cided that these acts are in pari materia. raised for decision is: Was the court right And it is conclusively established by a line in holding that the widow, plaintiff, had the of decisions of our Supreme Court that, when power to compromise and settle the case there is a husband or widow, children are not without the consent of a guardian of the only not necessary, but not eren proper par- minor children, and without the approval of ties, but it is necessary to name them in the the court whose wards the said minors declaration. Huntingdon & Broad Top Rail-were? It is conceded that this exact quesroad Co. v. Decker, 84 Pa. 419; Haughey v. tion has not been decided by either of the apPittsburg Rys. Co. (2), 210 Pa. 367, 59 Atl. pellate courts of this state. At the argu1110; Black v. B. & O. R. R. Co., 224 Pa. 519, ment and on first consideration of this ques73 Atl. 903. The right of said action cannot tion we were inclined to think the court errbe assigned by the widow to the child, so as ed in granting judgment for the defendant to enable suit to be brought in her name for non obstante veredicto. But on more careits benefit. Marsh v, Western New York & ful consideration of the acts of assembly, the Penna. R. R. Co., 204 Pa. 229, 53 Atl. 1001. authorities, the opinion of the court, and the And by the plain terms of the act of 1855 arguments of the able counsel representing the children cannot bring suit for themselves both sides of the case, we are forced to the in their own names while the widow is liv- conclusion that the judgment is right. It ing.

having authoritatively been decided in many

Pa.)

SHAMBACH V. MIDDLECREEK ELECTRIC CO.

803

sue.

cases by our Supreme Court that the widow Counsel cite and urge upon our consideration is the proper party to sue in her own name a decision by the late Judge Simonton in and carry the suit to judgment and collec- Styles v. Steel Co., 2 Dauphin Co. R. 257, and tion, it is difficult to see why she may not 7 Del. Co. R. 456. That case is not. binding compromise and settle the case for a valua- upon us, although we entertain great respect ble consideration when she is not overreach for a decision of that able judge. The case is ed or defrauded.

not well reported, but it seems to have been an "The able counsel for plaintiff cites and attempt on the part of the widow to disconrelies with much apparent confidence on the tinue an action brought to recover damages following cited and other cases: Lewis v. caused by the death of the husband and faTurnpike Co., 203 Pa. 511, 53 Atl. 349, 93 ther. What Judge Simonton really decided Am. St. Rep. 774, where Mr. Justice Mitchell was that the widow could not discontinue the said: "The act first gives the right of action suit. It must be borne in mind that when and then prescribes the mode of distribution the action is pending it is always within the of the sum recovered, but that necessarily discretion of the court whether or not the means distribution among those entitled to plaintiff shall be allowed to discontinue it.

It would be absurd to suppose that in There may have been strong reasons why the same sentence the statute meant to give that case was not allowed to be discontinued. part of the damages to those to whom it had The widow might have been moved by imdenied the right of action.' We think the proper motives. It must be and is conceded counsel draws an erroneous conclusion from that the children have an equitable right or this language. It refers mainly to the ques- title to their shares of the damages recovered tion of distribution, and what is said about by the widow, and, if she does not recognize the right to sue refers to those who under their rights, she will be declared a trustee of certain conditions have that right. If the the fund upon a proper application to a court widow be dead, the children have a right to of equity having jurisdiction of the parties. sue. A portion of the damage belongs to Allison et al. v. Powers, 179 Pa. 531, 36 Atl. them, and they are interested in the distri- 333; Lewis v. Turnpike Co., 203 Pa. 511, 53 bution. But the language of Mr. Justice Atl. 349, 93 Am. St. Rep. 774. Mitchell does not mean that the children are “In support of the judgment of the court parties to the suit of the widow except that below we do not see that much can be added, they are to be named in the declaration for with profit, to the lucid opinion of Judge the purpose of distribution.

McClure in support of his decision. In that "We also think the language of Mr. Justice opinion he refers to and cites a large numSterrett in Birch v. Railway Co., 165 Pa. ber of cases from courts of other states aris339, 30 Atl. 826, does not bear the construc- ing under statutes more or less similar to tion put upon it by plaintiff's counsel. Coun ours. The great weight of those authorities sel argues from that authority that, even in Tennessee, Rhode Island, Minnesota, Miswhere the widow survives, the children have sissippi, etc., is in support of the conclusion the right to maintain an action. This view that the widow in the present case had the is in conflict with the act of 1855 and with power to make the compromise and settlethe adjudicated cases thereon. The children ment in question. As showing the view of do not have the right to sue and carry on an another common pleas judge, the case of action while the widow is alive. Counsel also Toole v. Jones, 32 Pittsb. Leg. J. 387, is cited. cites Lehigh Iron Co. v. Rupp, 100 Pa. 95, In that case the court said: "The statute havbut we do not think that case sustains plaining invested the widow with the power to tiff's contention. On page 99, Mr. Justice bring suit for herself and children, she could Trunkey, speaking for the Supreme Court, compromise and settle the claim without suit said: "When a husband or wife recovers when it is done fairly'-in which case she damages, and there are children of the de- would be accountable to the children for twoceased, the provisions of the statute for dis- thirds of the amount received just as though tribution under the intestate law apply, and she had recovered at the end of a suit. Much strictly accord with the main object of the importance is attached by appellant's counsel statute, which is a remedy for the loss to to some cases decided by the Supreme Court the family.' That case concedes that the of Texas, and also cases under a similar statsuit is to be brought and carried on by the ute of the territory of Arizona. These cases husband or wife, but that the children are held that the widow could not remit any porinterested in the distribution, and it does not tion of a verdict in favor of the beneficiaries sustain the proposition that the children are (Southern Pacific Co. v. Tomlinson, 163 U. S. necessary parties to the action. The learned 369, 16 Sup. Ct. 1171, 41 .. Ed. 193); the counsel also cites a number of cases where Texas cases holding that the widow had no the widow and children were joined as plain- power under the statute of that state to com. tiffs, but they must and do concede that the promise or release the rights of her minor authoritative decisions of the Supreme Court children. As we understand the statutes re. are that the suic should be brought in the ferred to, they require a specific finding by name of the widow while she survives. the jury in favor of each beneficiary, and

that distinguishes them from our statutes herself. In addition, as permitted by the which authorize a general verdict for the statute, the jury has assessed separately the widow or husband plaintiff.

recoveries for each of the parties plaintiff, "We have been referred to an interesting and it is obvious that the widow, being only opinion by District Judge Archbald in Paolo one of the parties plaintiff, had no right to v. Laquin Lumber Co., in the Circuit Court interfere with the rights of any other than of the United States for the middle District herself. In view of the fact that the Pennof Pennsylvania. That was an action to re- sylvania courts do not admit the children cover damages under our acts of 1851 and as parties plaintiff at all, that case has no 1855, and we are much impressed with the bearing upon the Pennsylvania statutes.' reasoning of that able judge, and he reaches "It is argued with much earnestness that a conclusion, expressed as follows: "The the view taken by the court below upholding right to compensation for the death of a per- the right of the widow to compromise and son rises no higher than that of the one who settle the claim might result in the children is authorized to sue for it; and, the right to losing their two-thirds of the recovery. This sue being given by the statute to the widow is true. But it is a legislative rather than who is living, no other is qualified. The a judicial question. Under the act of 1855, children have no interest except in the dam- as construed by our Supreme Court, the chilages which she recovers, and only after she dren are not parties to the suit, but are only has recovered them. There is no severable required to be named in the declaration for share which entitles either of them by him- distributive purposes. It does seem that the self, as here, to a direct and separate cause statutes which allow the person, who is only of action. It is true that in Toole v. Jones, entitled to one-third of the recovery, to set32 Pittsb. Leg. J. 387, a suit was sustained tle and adjust the claims of those entitled to in the name of the wife for the use of the the other two-thirds is faulty; but this can children, after she had settled and released only be remedied by the Legislature. her individual damages; but, if that is to “Notwithstanding the very able and earnbe taken as opposed to the views which are est argument and reargument of this case on here expressed, it is contrary to what was the part of the able counsel for the appeldecided in Marsh v. Western New York & lant, we are not convinced that the court bePenna. R. R. Co., 204 Pa. 229 [53 Atl. 1001], low erred in entering judgment for the deand is therefore no authority. In the Marsh fendant non obstante veredicto. Case, also, the widow refused to prosecute,

"The assignments of error are dismissed, which would seem to present as strong a and the judgment is affirmed." ground for allowing the child to sue for it Argued before FELL, C. J., and BROWN, self, as where she herself is qualified; and MESTREZAT, POTTER, and MOSCHZISKyet it was held insufficient to do so.'

ER, JJ. "District Judge Rand in the Circuit Court Grant Herring and F. S. Wagenseller, for of the United States for the Southern Dis- appellant. C. E. Sprout and Charles P. Ultrict of New York, in the case of Conover v. rich, for appellee. Penna. R. R. Co., 176 Fed. 638, held as follows: 'It is quite clear under the law of PER CURIAM. The judgment is affirmed Pennsylvania that the widow alone is the on the opinion of the Superior Court. person in whom the right of action is vested. (Citing several Pennsylvania authorities.) All the proceeds she holds in trust for her

(232 Pa. 592) self and children; but there is no provision CITIZENS' GAS CO. OF PORT ALLEGHEanywhere in the statute by which the inter

NY v. WHITNEY et al. est of the children may be apportioned in the (Supreme Court of Pennsylvania. July 6, 1911.) action, and the proceeds are to be turned 1. APPEAL AND ERROR (8 969*)-REVIEWover to her for distribution. I think that

DISCRETION OF TRIAL COURT-SEVERANCE

OF TRIAL. payment to her, or settlement with her, was The trial court's discretion in ruling on a an effective bar just as it is in the case of any motion for severance in ejectment will not be other trustee, and that the person who deals reversed unless there has been an abuse in the

exercise of that discretion. with her need not follow the application of

[Ed. Note.-For other cases, see Appeal and the proceeds.' The judge then refers to the Error, Cent. Dig. § 3845; Dec. Dig. $ 969.*] case of Southern Pacific Co. v. Tomlinson, 2. ACTION (8 60*)-SEVERANCE. 163 U. S. 369, 16 Sup. Ct. 1171, 41 L. Ed. 193, In ejectment, a severance is properly reand points out why that decision does not fused where the return to the writ shows both apply under the Pennsylvania statutes: 'In defendants to be in possession of the premises, apply under the Pennsylvania statutes: 'In one as lessor of the other, and they file a joint the first place, they were all parties to the appearance and joint answer, setting up the record, a procedure which was permitted by privity of title, and prepare all their pleadings the statute. The widow, was therefore in with a view to a joint defense, and there is no

reason for not permitting such defense. the position of trying to compromise the in

[Ed. Note. For other cases, see Action, Cent. terests of other parties to the record than | Dig. 88 699–707; Dec. Dig. § 60.*]

Pa.)

CITIZENS' GAS CO. V. WHITNEY

805

3. EJECTMENT (8 95*)-EVIDENCE-SUFFI- | deed, Mr. Whitney made a lease to the BradCIENCY.

ford Gas Company for the purpose of operatEvidence warranting a finding that the two defendants in ejectment had notice of an outing for oil and gas on this same tract of standing unrecorded conveyance of the prem- | land.” ises to plaintiff when they purchased is suffi

Plaintiff presented this point: cient to sustain a verdict for the plaintiff.

"(1) If the jury believed from the evidence [Ed. Note.-For other cases, see Ejectment, of Whitney which is uncontradicted that Dec. Dig. $ 95.*]

the Bradford Gas Company had notice from 4. APPEAL AND ERROR (8 882*)-REVIEW-him of the sale to the Citizens' Gas Company

ESTOPPEL TO ALLEGE ERROR-INVITED ER of the oil and gas rights in and to the land ROR.

In ejectment against two defendants, a in controversy before taking its lease from reversal of the judgment for plaintiff is not re- Whitney, and if the jury find from the evi . quired by the fact that the court at the instance of counsel for one of the defendants, over ob-dence that the defendant Whitney had notice jection of the plaintiff, erroneously ruled that from Sherwood or any other person interestthe testimony of the other defendant called by ed in the premises of the said sale from Sherthe plaintiff, as under cross-examination, should wood to the Citizens' Gas Company at any not affect the defendant asking such ruling, where the latter's counsel, without relying on the time before the final completion of his purruling, treated the witness as competent for all chase from Sherwood and delivery of the purposes and on cross-examination elicited an

deed to him, the verdict must be for the answer on a material point, which it made a plaintiff. Answer: We affirm this point.” part of its case. [Ed. Note. For other cases, see Appeal and

Defendant presented these points: Error, Cent. Dig. $$ 3591–3610; Dec. Dig. “(2) Under all the evidence in the case, 882.*]

the verdict should be for the defendant. An5. APPEAL AND ERROR (8 882*)-REVIEW-Es-swer: We refuse this point." TOPPEL TO ALLEGE ERROR-İNVITED ERROR. “(9) That, it appearing that the defendant

Parties who induce the court to commit an Bradford Gas Company was not in posseserror are thereby prohibited from availing them- sion of any oil or gas on, in or under said selves of it in any court of review.

[Ed. Note.-For other cases, see Appeal and land at the time of the service of the writ Error, Cent. Dig. $$ 3591-3610; Dec. Dig. 8 of ejectment upon it in this case, there can 882.*]

be no recovery against the Bradford Gas

Company. Answer: This point is refused. Appeal from Court of Common Pleas, Al

"(10) That under all evidence in this case legheny County.

the plaintiff cannot recover against the BradAction by the Citizens' Gas Company of ford Gas Company. Answer: This point is Port Allegheny against B. L. Whitney and

also refused.” another. From a judgment for plaintiff, de

The court charged, in part, as follows: fendants appeal. Affirmed.

"The evidence as to the notice to the BradThe facts are stated by the lower court ford Gas Company is the evidence of Mr in its charge to be as follows:

Whitney. You heard that evidence read. "This is an action of ejectment brought by He tells you he did inform the representathe Citizens' Gas Company of Port Alleghe-tive of the Bradford Gas Company that Mr. ny, a corporation, against B. L. Whitney, Sherwood had sold the oil and gas, or that and the Bradford Gas Company, also a cor- the Citizens' Gas Company has a deed for poration, to recover possession of an oil and the oil and gas. That evidence is uncongas right in 42 acres of land.

tradicted. If you find Mr. Whitney is tell"It appears in this case that the title to ing the truth, he is uncontradicted in the this tract of land was in Joseph N. Sher-case. Then you would be justified in findwood in April, 1901; that Joseph N. Sher-ing that the Bradford Gas Company had nowood made a deed to the Citizens' Gas Com- tice of this conveyance, and, if you so find, pany dated March 23, 1904. This deed to then they could not recover. Mr. Whitney the Citizens' Gas Company was not record- goes so far as to say, as we remember his ed until March 22, 1906, when they placed testimony, that he told Mr. Shaw or the it upon record in the recorder's office of this representative, whoever it was, of the Bradcounty. It further appears that after the ford Gas Company, that the Citizens' Gas making of the deed to the Citizens' Gas Company's deed was on the record. Now, if Company and before the recording of that that is so, then that was actual notice to the deed, namely, on January 30, 1906, Joseph N. Bradford Gas Company that the Citizens' Sherwood made a deed for the same prop-Gas Company had a prior deed, and they erty to B. L. Whitney, one of the defendants would get no title." in this case, who immediately placed his Verdict for plaintiff and judgment thereon. deed on record, the deed having been made Defendant appealed. January 30, 1906, and placed upon the rec Errors assigned were (1) in refusing the ord February 1, 1906. Following that, on petition of the Bradford Gas Company for a February 6, 1907, which you will observe separate trial; (2-5) answers to points as was over a year after Mr. Whitney got his above; and (6) portion of charge, quoting it.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Argued before FELL, C. J., and BROWN, , son why they should not jointly defend. This ELKIN, STEWART, and MOSCHZISKER, is a case in which the plaintiff was entitled JJ.

to have the whole controversy settled in one John G. Johnson, W. E. Burdick, and F. P. trial. The learned trial judge was clearly Schoonmaker, for appellants. J. E. Mullin, right in refusing to grant a severance. D. H. Jack, and Sheridan Gorton, for appel

[3] The question of title involved here delee.

pends upon whether Whitney and the Brad

ford Gas Company had notice, actual or conELKIN, J. This is an action of ejectment structive, either or both, of the deed from to determine the title and recover the posses- Sherwood to the appellee company. This sion of the oil and gas in and under certain deed was executed first in point of time but lands described in the writ. The plaintiff was not recorded until after the deed to never took actual possession of the land un-Whitney had been executed and recorded. der its deed for the purpose of operating for If Whitney was a bona fide purchaser of the oil and gas, but this is not a bar to its right premises without notice of the unrecorded to recover possession, as was decided indeed, he took a good title. If, on the other Barnsdall v. Bradford Gas Co., 225 Pa. 338, hand, he had notice of the outstanding un74 Atl. 207, 26 L. R. A. (N. S.) 614. The recorded deed to appellee, he was bound by suit having been properly brought, the only that notice, and took the risk of that being question for our determination is whether a valid conveyance. All of this was a queserror was committed at the trial.

tion of fact to be determined by the jury un[1] The first assignment relates to the re- der proper instructions by the court. The fusal of the trial judge to grant a severance question was submitted to the jury, and the upon the petition of the Bradford Gas Com- verdict shows that they believed both Whitpany. The general rule is that the granting ney and the Bradford Gas Company had noof a severance in civil suits of this character tice of the conveyance to appellee at the time rests in the discretion of the trial judge, and of their respective purchases. The evidence his ruling will not be reversed unless there was sufficient to warrant such a finding. has been abuse in the exercise of that discre- Indeed, upon a review of the whole record tion.

we do not see how any other conclusion could [2] We fail to find any such abuse of dis- be reached. There is only one error called cretion in the present case as to warrant to our attention by the assignments which a reversal on this ground. The defendants has any substantial merit. The evidence of filed a joint appearance and a joint answer Whitney shows that at the time of making and prepared all their pleadings with a view the lease to the Bradford Gas Company he to making a joint defense. Certainly under gave notice that the appellee company had such pleadings it cannot be said that one of a deed for the oil and gas in the premises the defendants was entitled to a severance and that the deed was then on record. There as a matter of right. The Bradford Gas is no doubt as to the testimony of Whitney. Company was a lessee of Whitney and nec- and the only question is whether it could be essarily stood upon the title of its lessor. If considered as affecting the rights of the Whitney had no title, his lessee acquired no Bradford Gas Company. right or privilege. The return to the writ [4] The plaintiff called Whitney as if on showed both defendants to be in possession cross-examination. The court ruled it was of the premises. The joint answer of the proper to do so, but that his testimony on defendants sets up the privity of their title such cross-examination should in no wise which they undertake to assert and defend. affect the Bradford Gas Company. To that There is nothing unusual about this joinder part of the ruling limiting the effect of the of defendants in actions of ejectment. The testimony upon the Bradford Gas Company act of March 21, 1772 (1 Smith's Laws, p. the plaintiff excepted and a bill was sealed. 370), provides that the landlord may defend The examination of the witness was then with the tenant who has been sued in eject- proceeded with at length. He was first exment, while the act of May 8, 1901 (P. L. amined by counsel for plaintiff, then cross142), clearly contemplates that all claimants examined by counsel for the Bradford Gas to the premises, whether in possession or Company, and then re-examined on every not, shall be made parties to the writ. The phase of the question relating to the subject trend of decision and of statutory procedure of notice. While the court had ruled that in recent years, while requiring one in pos- his testimony should not affect the Bradford session to be made a party, recognizes and Gas Company, counsel for this company approves the practice of joining all parties undertook on cross-examination to elicit anclaiming title to or interest in the premises, swers tending to show that the witness, and as a general rule this may be done with Whitney, had not given any such notice. In out respect to privity of title or unity of in other words, the parties themselves treatel terest. See Warvelle on Ejectment, $ 96, and the witness as competent for all purposes and following pages. In the case at bar both de- so conducted the examination. The court fendants are in possession. They appeared erred in its ruling limiting the effect of the

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