Opinion
April 16, 1936.
July 10, 1936.
Actions — Tort — Death — Action by personal representative — Funeral and medical expenses — Action not commenced by decedent — No husband, widow, children, or parents surviving — Action by person in loco parentis — Joinder of claims.
1. A person who acted in loco parentis to a decedent during his lifetime, and received support from the latter, may not maintain an action, individually, to recover damages for the death of the decedent, caused by the unlawful violence or negligence of defendant, for funeral expenses of the decedent or the expenses incurred for his medical and hospital care, or for the costs and expenses of administration of his estate, where the decedent instituted no action against the tort feasor during his lifetime, and left surviving him no widow, children, or parents.
2. Such action may not be maintained by the personal representatives of the deceased.
3. Potter Title Trust Company v. Petcoff, 122 Pa. Super. 540, followed.
4. The joinder of the claim of a person as an individual and his claim as an administrator of the estate of a decedent is improper.
Appeal, No. 193, April T., 1936, by plaintiff, from judgment of C.P. Warren Co., June T., 1935, No. 37, in case of Charles Eifler, administrator of estate of Christian Eifler, deceased, v. Nels Anderson et al. doing business under the firm name and style of Warren Baking Company et al.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Judgment affirmed.
Trespass.
The facts are stated in the opinion of the Superior court, and also in the opinion of the lower court, reported in 24 Pa. D. C. 588.
Affidavit of defense in nature of demurrer sustained and judgment entered for defendants, opinion by ARIRD, P.J. Plaintiff appealed.
Error assigned was order of lower court.
S.Y. Rossiter, with him Bordwell Eldred and I. Reines Skier, for appellant.
W.S. Clark, with him J.H. Alexander, of Alexander Clark, for appellee.
Argued April 16, 1936.
This is an action in trespass instituted by Charles Eifler, individually and as administrator of the estate of Christian Eifler, deceased. This is the proper caption of the case, as no amendment was made in the court below limiting the action to the plaintiff as administrator.
An affidavit of defense raising questions of law was filed by the defendants. This was sustained; and judgment was entered by the court below in favor of the defendants. Plaintiff appealed.
The plaintiff's statement set forth that the plaintiff, Charles Eifler, was a citizen of the state of New York; that he was a brother of the deceased Christian Eifler; that he acted in loco parentis to the deceased during his lifetime, and received support from the deceased; that he had been duly appointed and had qualified as administrator of the estate of Charles Eifler; that the parents of the deceased died prior to the time he was five years of age; that deceased was twenty-seven years of age at the time of his death; that deceased received injuries which caused his death, and which were produced by the negligence and carelessness of the defendants (details thereof are incorporated in the statement of claim).
Plaintiff claimed that he had been damaged by the death of the deceased in the sum of $100,000; and that he had been obliged to pay the funeral expenses of the deceased in the amount of $644.40, medical and hospital services, $26.65, headstone, $350, and costs and expenses of the administration of his estate.
A stipulation was filed to the effect that deceased left neither widow, child, nor parents.
Defendants question the plaintiff's right to recover, under the facts, either as an individual or as administrator.
Plaintiff cannot recover under the facts, and the action of the court below was proper. Plaintiff has no standing to maintain his action, either as an individual or as administrator. He has no right of action by virtue of any present Act of Assembly, and without statutory authority he cannot recover. The principles governing this case are fully stated in our opinion in the case of Potter Title and Trust Company v. Petcoff et al., 122 Pa. Super. 540, 186 A. 320.
Furthermore, plaintiff brought his action individually and as administrator of the estate of Christian Eifler, deceased. Although on appeal he sought to abandon any claim as an individual and contended that he, as administrator, had a right to recover for funeral, medical, and other expenses, still the record shows no amendment or change that would warrant this position. Such a joinder is improper.
Judgment is affirmed.