
    GIOCONTO M. ANNUNZIATO, ADMINISTRATOR AD PROSEQUENDUM, v. STANLEY EISNER.
    Decided June 16, 1924.
    Negligence — Death Act — Action Instituted on Erroneous Theory —Action by Father-for His Own Benefit — Rule Made Absolute.
    On defendant’s rule to show cause.
    
      Before Gummere, Chief Justice, and Justices Mixturx and Black.
    For the rule, Frank G. Turner.
    
    
      Contra, Bolilho £ O’Connor.
    
   Pee Curiam.

The .present action is based upon our Death act, the cause of action being the death of Achille Annunziato', an infant of six years of age, resulting from the negligent driving bv the defendant of his automobile, whereby he knocked down and ran over the child. The suit, however, was instituted and prosecuted upon an erroneous theory. It was brought by the plaintiff personally, as father of the decedent, and 'as administrator ad prosequendum of the estate of'the decedent, and the recovery was sought by the father alone. Moreover, at the conclusion of the trial the jury was instructed, in effect, that in determining the amount of the recovery, if any, it should limit its consideration to the probability of the pecuniary benefit which would have resulted to the father from the continuance of the life of the son.

The amendment of our Death act, passed by the legislature in 1913 (Comp. Stat. Supp., p. 475) provides that the amount recovered shall be for the exclusive benefit of the widow, surviving husband (if either shall exist), and next of kin of the decedent, and shall be distributed among them in the manner provided by law for the distribution of personal property left by persons dying intestate, and the amendment of 1914 to our statute of distribution (Orphans Court act, Comp. Stat. Supp, p. 1156, ¶ III) provides that where the intestate is a minor his estate shall be allotted to the parents. By force of these statutory provisions, the present action should have been brought by the administrator ad prosequendum for the equal benefit of the father and mother of the decedent, and the recovery, if any, should be had for their equal benefit.

The case having been brought and tried on a wrong theory, we conclude that the rule to. show cause should be made absolute, and that the complaint should he amended, the amended complaint filed, and the ease retried, upon the lines which we have indicated.

In the amended complaint it should also be made to appear that the action was commenced within twenty-four calendar months from the date of the death of the decedent.  