
    Stegner, Administrator, Appellant, v. Fenton.
    Argued Dec. 5, 1944.
    Before Maxey, C. J., Drew, Linn, Stern, Patterson, Stearne and Hughes, JJ.
    
      j perry Eckels, with him Charles B. Stegner, for appellant.
    
      Stuart A. Culbertson, for appellee.
    January 18, 1945:
   Opinion by

Mr. Justice Drew,

This trespass action was brought by the administrator of John Edward Paulich, deceased, who died the same day he sustained fatal injuries in an accident while riding as a guest in an automobile operated by defendant. The parents of decedent previously instituted an action against defendant for the wrongful death, which action is now pending.

The Statement of Claim alleges that this case was brought to recover damages for the personal injuries of the decedent, under the provisions of Section 2 of the Act of July 2, 1937, P. L. 2755, Yol. II, known as the Survival Act.

The suit was brought after the expiration of one year, but before two years, from the date of the accident and death. Defendant in an Affidavit of Defense raised a question of law that the action was barred by the Statute of Limitations. The learned court below sustained this contention and entered judgment for defendant, and plaintiff appealed.

There is but a single question for our determination, i. e., “Is an action for personal injuries which resulted in death, brought by decedent’s personal representative after one year, but before two years from the date of the accident and death, barred by any Statute of Limitations?”

This type of action carried through by a personal representative was assured in Pennsylvania by the Act of 1937, supra, Section 2 of which reads in part as follows: “(b) Executors or administrators shall have power ... to commence and prosecute all actions . . . and all personal actions which the decedent whom they represent might have commenced and prosecuted . . .” The statute fixes no limitation of time as to personal actions which are brought by executors or administrators. The limitation of one year mentioned subsequently in the same section of the act refers only to rights of action brought against executors and administrators. We must, therefore, look elsewhere for an answer to our question.

In construing the “survival” Act of 1937, this Court said, in Pezzulli v. D’Ambrosia, 344 Pa. 643, 647, 26 A. 2d 659, that the action brought under this statute “is not a new cause of action at all, but merely continues in his [decedent’s] personal representatives the right of action which accrued to the deceased at common law because of the tort; the damages recoverable are measured by the pecuniary loss occasioned to him, and therefore to his estate, by the negligent act which caused his death.” In the same case, we also said (pp. 648-9) : “By providing that executors or administrators may commence and prosecute all personal actions which the decedent might have commenced and prosecuted the act of 1937 clearly indicates that the actions thus commenced by executors or administrators are the same actions which their decedent might have commenced and prosecuted, and being the same actions they must, in the absence of legislative mandate to the contrary, be governed by the same measure of damages.”

To clarify our thought it might be well to review briefly the various statutes that are directly or collaterally in point. The Act for “Limitation of Actions” of March 27, 1713, P. L. 76, provided for the right of the injured party to a cause of action for personal injuries, and limited the time to bring suit to “within two years next after the cause of such actions or suit, and not after . . .” The Act of 1851, P. L. 669, Section 18, provided that the right of action by the injured party did not abate by reason of death, but the personal representatives of the deceased could be substituted as plaintiff, and prosecute the suit to final judgment. Section 19 provided for a cause of action by the widow of such deceased, or if there was no widow, the personal representative, to recover damages for the wrongful death occasioned by the tort. No limitation was specified in either section of the act. The Act of 1855, P. L. 309, Section 1, amended Section 19 of the Act of 1851 to the extent that it stipulated the persons entitled to recover damages for any injury causing death, i. e., husband, widow, children or parents of the deceased, and no other relative, and limited the action to “one year after the death, and not thereafter”. This act simply increased the number of persons permitted a cause of action for wrongful death, naming them, and deleted the personal representative. The Act of June 24, 1895, P. L. 236, Section 2, reiterates the limitation of an action for personal injuries to the injured party, as set forth in the Act of 1713, to “within two years from the time when the injury was done and not thereafter . . .” That section then goes on to say: . in cases where the injury does result in death the limitation of action shall remain as now established by law.” (Italics added.) Appellee contends that these words “shall remain as now established by law” place actions such as the one now before us under the one-year limitation provided in the Act of 1855, and is a bar to the present suit. Our understanding of the words, interpreted in the light of all these statutes, leads us to the opposite conclusion. We think the words refer directly to the then “established law”, the Act of 1855, and the limitation of one year therein, which applies only to the persons named in the act as authorized to sue. By no stretch of imagination can the provisions of that act be grafted upon the “survival” Act of 1937, supra, which was passed for an entirely different purpose. The Acts of 1851 and 1855, supra, are “death” statutes, not “survival” acts. In speaking of them it was said by this Court in Kaczorowski v. Kalkosinski, 321 Pa. 438, 441, 184 A. 663: “But where no action has been commenced by the deceased in his lifetime and an action is brought under the death statute, the recovery is for a loss occasioned to third parties by the death, not for the injuries to the deceased. Pain and suffering and loss of earning power are not recoverable. What is recoverable is the loss of pecuniary benefits which the persons named in the act would have received from the deceased had death not intervened . .■ . By the statute there is given an explicit and independent right of action to recover the damages peculiarly suffered by the parties named therein. . . The legislature has selected certain relationships to the deceased as determining who those parties are, but the damages to be recovered by them must be pecuniary loss to themselves, it bears no relation to tbe damages recoverable by a decedent who sues for the injury while living: Gaydos v. Domabyl, supra [301 Pa. 523]”. At tbe time of tbe passage of tbe Act of 1895, tbe right of action of tbe injured party died with him. Only an action commenced during bis life could be maintained by bis representative, and this fell in tbe two-year limitation. It follows that with tbe death, tbe only action remaining was that of tbe surviving relatives as provided in tbe Act of 1855. It is only to those actions that tbe words “shall remain as now established by law” could apply. Tbe acts have consistently applied tbe one-year limitation exclusively to those actions where suit is brought by tbe surviving relatives for wrongful death.

Since a suit by a personal representative under tbe Act of 1937 is identical to that which decedent might have commenced and prosecuted during bis lifetime and, therefore, governed by tbe same measure of damages, it is but logical to conclude, tbe legislature, not having provided to tbe contrary, that tbe same limitation as to time when suit must be instituted governs, whether tbe action be brought by tbe injured person during bis lifetime, or by bis personal representative under tbe Act of 1937 after his death; that is, as set forth in tbe Acts of 1713 and 1895, supra, “within two years from tbe time when tbe injury was done.”

This suit brought by tbe Administrator of tbe Estate of Jobn Edward Paulich, Deceased, was instituted within tbe period of two years from tbe time of tbe accident, and therefore, the learned court below erred in entering judgment for defendant.

Judgment reversed, with a procedendo.  