LaBar v. New York, Susquehanna & Western Railroad ( 1907 )

Opinion by

Mr. Justice Elkin,

The husband of appellant, a locomotive fireman in the employ of the defendant company, was killed by the explosion of the engine boiler on December 21, 1905, in the state of New Jersey. This action was brought in the court of common pleas of Monroe county, this state, August 13, 1906, by his widow, the appellant here, in her own right. When the case came on for trial February 13,1907, counsel for plaintiff made a motion to amend the pleadings by adding the name of Catherine E. LaBar, administratrix of Charles D. LaBar, deceased. The learned trial judge permitted the record and pleadings to be so amended under exceptions, but the next day, after full consideration, an order was made to strike off the amendment on the ground that it introduced a new cause of action barred by the statute of limitations, and therefore not allowable. It is authoritatively settled in this state that when a suit is brought for injuries resulting in death, the action must be instituted in the name of the persons, or personal representatives, to whom the right of action is given by the statutes of the state in which the injuries were inflicted and the death occurred. The action being transitory, the comity existing between different states will enforce rights of a statutory origin when jurisdiction of the parties is acquired by the courts here. In such a case, however, the qourts of this state will only enforce the rights of the parties according to, and as defined by,'the lex loci. This is the established rule in Pennsylvania : Usher v. Railroad Company, 126 Pa. 206. In order to have complied with this rule the present suit should have been brought by the administratrix of the estate of the decedent for the benefit of his widow and children. It was not so brought. The plaintiff sued, in her own individual right, and so .the case stood until the time of the trial. It is conceded that without the amendment the appellant cannot sustain her action, hence the only question to be determined is whether the learned trial judge erred in striking off the amendment to the pleadings. Unless the amendment is allowed the right of action does not exist in the plaintiff. The answer to this question depends upon whether a new cause of action was introduced or new parties were permitted to intervene. It has been many times decided that a new cause of action cannot be introduced, or new parties brought in, or a new subject-matter presented, or a vital and material defect in the pleadings be corrected after the statute of limitations has become a bar: Grier v. Assurance Company, 183 Pa. 334. To the same effect are Trego v. Lewis, 58 Pa. 463; Kaul v. Lawrence, 73 Pa. 410; Kille v. Ege, 82 Pa. 102; Garman v. Glass, 197 Pa. 101; Wilkinson v. North East Borough, 215 Pa. 486.

The learned counsel for appellant seek to avoid the application of the rule announced in these cases by insisting that the beneficiaries entitled to receive the moneys that might be recovered in this case are practically the same under the statutes of Pennsylvania and New Jersey, and, therefore, no injury is done the parties to this suit. This contention cannot be sustained under the rule of our cases. In Usher v. Railroad Company, supra, the present chief justice, in discussing the precise question, said : “ At the outset we may say that the action can get no support from the fact that a closely similar statute in this state gives the right to sue,, expressly and exclusively, to the widow, if there be one, for the benefit of herself and her children.” This whole question was fully considered in that case, the contention there made in this respect being on all fours with the argument here, and the conclusion was reached that it would be pushing the comity which undertakes to enforce in this state a right of action which accrued in another state beyond its legitimate bounds, to assume to do for other tribunals what they would not do for themselves. In other words, as applied to the facts of the present case, if the suit had been brought in New Jersey the personal representative of the deceased husband would be required to bring it, and not the widow, in her own individual right, and this is equally true when the suit is brought in our state. It was not so instituted, and it is too late to amend the record so as to make the personal representative of the decedent a party to the record, as required by the New Jersey statute, after the statute of limitations had become a bar, because this in legal effect introduced a new cause of action by the substitution of different parties.

It is suggested for appellant that the statute of limitations had not become a bar at the time the amendment was asked because of the enactment by congress of what is known as the employers’ liability act, in which it is provided “ that no action shall be maintained under this act, unless commenced within one year from the time the cause of action accrued.” It is contended that the right of action did not accrue until the personal representative was appointed, and that the suit could have been instituted, or the amendment allowed, within one year from the date of that appointment. This is clearly an afterthought. Questions arising under this act were not raised, nor considered in the court below, nor have any assignments of error properly brought the question before this court. As the record stands the application of that act to the facts of this case cannot be considered, and the question raised will not be determined.

Judgment affirmed.