THE DAUPHIN COUNTY REPORTS CONTAINING THE CASES DECIDED BY Judges of the Twelfth Judicial District of Pennsylvania and the Decisions of the Departments of the State Government Pasquale Liberato vs. Royer & Herr Actions for damages for accidental death in course of employmentNon-resident dependents-Workmen's Compensation Act of 1915. When neither the plaintiffs nor the defendants, in an action to recover damages in course of employment, have filed the statement required by Section 302 (a) of the Workmen's Compensation Act of 1915, rejecting the provisions of Article III of that act, as applicable to their contract of hiring, they are bound by it and plaintiffs are precluded from prosecuting their claim by action in court. Under conditions which restrict citizen parents to the remedies provided by the Workmen's Compensation Act of 1915, non-resident, alien parents, who, by treaty, have been given the same rights as citizen parents are also restricted to the remedies provided by that act. The right of dependent parents to recover compensation for the death of a child is purely statutory; without a statute conferring the right there can be no recovery, either by citizen parents or non-resident alien parents; the only statute governing that right in case of accidental death in the course of employment, is the Workmen's Compensation Act of 1915, except in cases in which its provisions have been rejected in the contract of hiring, as provided in that act. Action for compensation for death in course of employment. John C. Nissley, for plaintiff. Neither the plaintiffs, the parents of the employee who was accidentally killed in the course of his employment with the defendants, nor the defendants, the employers, filed the statement in writing provided for in Section 302 (a) of the Workmen's Compensation Act of 1915, P. L. 736 rejecting the provisions of Article III of that Act as applicable to their contract of hiring. They must therefore be conclusively presumed, as provided by that section, to have accepted the provi Pasquale Liberato vs. Royer & Herr sions of the Article and agreed to be bound thereby. Among other things the Article provides, in Section 306, a schedule of compensation for injuries resulting in disability, partial or total, and in Section 307, a basis of computing compensation to the deceased's dependents in case of death. The effect of the agreement is thus stated in Section 303: "Such agreement shall constitute an acceptance of all of the provisions of Article three of this Act and shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for injury or death occurring in the course of the employment, or to any method of determination thereof, other than as provided in Article three of this Act. Such agreement shall bind the employer and his personal representatives, and the employee, his or her wife or husband, widow or widower, next of kin, and other dependents." Under this section, if the injury which the employee received had not resulted in death. and he was seeking to recover compensation therefor, he would be limited to the compensation provided for in Article three and to the procedure and the form established by the Workmen's Compensation Act. He could not have brought suit for his injury in disregard of that Act. His dependents are in the same position by express enactment in the case of his death. The rights and remedy provided by the Act are substituted for those previously existing and the parties are limited thereto. Repealing Section 504, Article III, Section 301. This is the conclusion reached in Gregutis vs. Waclark Wire Works, 86 N. J. L. 610, and in Nathison vs. Minn. St. Railway Co., L. R. A. 1916 D. 412, on substantially similar legislation. It is quite clear, therefore, that the plaintiffs are precluded from prosecuting their claim by an action in Court. It is objected, however, that the Workmen's Compensation Act in Section 310, expressly declares that alien parents not residents of the United States shall not be entitled to any compensation and, that, as this provision is in conflict with the treaty between the United States and Italy, of which country. the plaintiffs are residents and subjects, they are entitled to maintain this action. This conclusion does not follow even if under the treaty non-resident alien parents are entitled to the remedy citizen parents are afforded by the laws of the State. It is not contended that the treaty gives them any greater rights or any different remedy. Under circumstances like those agreed upon in this case, citizen parents would be restricted to the remedy provided by the Workmen's Compensation Act; so also non-resident alien parents must be restricted likewise. If the treaty provides the same rights and remedy for them as are given to citizen parents, their exclusion from the benefits of the Act would be unconstitutional and invalid. The validity of the excluding clause could readily have been Anna B. Albright vs. Harrisburg Railways Co. questioned on an application to the Compensation Board for compensation, and if it had been held invalid the Act would have been left in full operation without it by virtue of Section 502 which declares that "if any provision of this Act shall be held by any Court to be unconstitutional such judgment shall not affect any other section or provision of this Act" and read in connection with the treaty would cover the case of all dependent parents whether citizen or non-resident alien. The right of dependent parents to recover compensation for the death of a child is purely statutory. Without a statute conferring the right there can be no recovery either by citizen parents or non-resident alien parents. The only statute now governing a case like the present one is the Workmen's Compensation Act of 1915. By the provisions of this Act the plaintiffs are bound. It is suggested that it is too late for them to make demand for compensation under the Act, the time having elapsed within which the demand is required to be made. This is unfortunate, but we are powerless to afford relief. We are constrained to conclude that this Court has no jurisdiction of the action which the plaintiffs have brought. Wherefore, in accordance with the agreement of the parties, it is dismissed. Anna B. Albright vs. Harrisburg Railways Co. New Trial--Evidence. A new trial will not be granted on the testimony of an investigator. hired by the defendant in a negligence case, which tends to show that a witness who testified at the first trial had not seen the accident when the statements of the investigator are denied by the witness and it is shown that on the evening the day on which the accident occurred and on the morning of the day, the witness gave to two disinterested parties the same statement of the accident as he gave at the trial. Motion for a new trial. C. P. Dauphin County, No. 237, September Term, 1915. William M. Hain and William M. Hargest, for plaintiff. Wolfe & Bailey, for defendant. McCarrell, J., October 10, 1918. The pending motion was made March 17th, 1917, upon the allegation of defendant that at the trial of the case one Isaac Kissinger had falsely sworn that he was present at the time of the accident and observed what then took place. Upon the making of this motion we opened the judgment and granted a rule upon the plaintiff March 27, 1917, to show cause why the motion for a new trial should not be reinstated. Plaintiffs filed a return and answer to the petition to open judgment on Anna B. Albright vs. Harrisburg Railways Co. March 27, 1917. Depositions were then taken by both parties at various intervals and the depositions were filed of record March 23, 1918, some time after which the matter was argued and submitted to us. We have carefully read all the testimony contained in the depositions. The defendant appears to have employed through an audit and investigating company of Philadelphia one Robert Edwards to make inquiry in regard to the testimony of Isaac Kissinger at the trial of this case. Edwards came to Harrisburg and secured a room in the house of Mrs. Saunders, where Isaac Kissinger had been rooming for many years. He appears to have occupied this room for several months and was nearly every day with Kissinger. After several weeks he claims to have taken Kissinger, who is an old man, to the rooming house of Mrs. Geistwhite, where two stenographers and others were in waiting apparently to hear what Mr. Kissinger might say in regard to his testimony. Kissinger and Edwards, according to the statement of Edwards, were in a central room and the stenographers and some of the other parties were in the adjoining kitchen and close to the door between the kitchen and the other room. It is alleged that Kissinger made certain statements in regard to his lack of knowledge of the accident to Mrs. Albright, and these statements were taken down by the stenographers. Two or three of the persons who say they were present at this time in the Geistwhite house were called to testify as to what they heard Mr. Kissinger state, but the stenographers who were sent there for the purpose of taking accurate notes were not produced and their names were not given. Mr. Edwards claims that he did not know them, although they were procured by his employer. Kissinger denied having made any statement at the Geistwhite house. Mr. Edwards also took Kissinger to office of Wolfe and Bailey, counsel for the defendant, and claims that Kissinger there made an ex parte affidavit. Kissinger alleges that he and Mrs. Saunders went to the place which Edwards told them was the branch office of Mr. Hain, counsel for the plaintiff. Kissinger made an affidavit afterwards which is attached to the depositions and in which he denies testified to at the trial of this case. It appears from the testimony of David Bowman, Street Supervisor, that Mr. Kissinger told him the morning after the accident to Mrs. Albright that had seen it and explained to him what he had observed in substantially the same way as he testified at the trial of the case. He made the same statement to Mrs. Saunders on the morning of the day the accident occurred. Kissinger was employed by the city as a workman upon the streets, and from the testimony there can be no doubt but he was on duty at the time of this occurrence. He insists that Commonwealth vs. The Public Ledger Co. he saw the accident and that the occurrences were as he described them at the trial. After carefully considering all the testimony submitted we are not satisfied that Mr. Kissinger knowingly made any statement which differs materially from the testimony given by him at the trial. The procedure of Mr. Edwards, who was employed as an investigator for the defendant, seems to be quite unusual and is not calculated to inspire confidence. The fact that Mr. Kissinger gave to Mr. Bowman and Mrs. Saunders, who have no apparent interest in this case, and according to his testimony to Mr. McGregor also, within a short time after the accident, substantially the same statement of facts to which he testified at the trial of the case, tends to prove that Kissinger did not knowingly make any false statements as to his having seen the accident when he was examined as a witness in this case, and that his testimony was in accordance with his recollection. Mrs. Albright's testimony was corroborated by that of Mr. Kissinger, and a careful examination of the testimony of the trial will show that there was little, if any, serious contradiction of Mrs. Albright's evidence. We are not satisfied that any false statements on the part of Mr. Kissinger have been properly shown and are unable to say that if a new trial were granted the testimony of Mr. Kissinger should produce a different result. There is nothing contained in the depositions which tends to corroborate the statements made by Edwards that Kissinger stated that he had been offering twenty-five or thirty dollars to swear falsely. The plaintiffs and their counsel state most positively that no such offer was made by them or any of them. His testimony at the trial appears to have been in accordance with his recollection of the fact as stated by him very shortly after the accident and long before any alleged offer to pay him for his testimony was given him. We are by no means satisfied that we should reinstate the motion for a new trial or in any way interfere with the verdict. We therefore now direct that our previous order opening the judgment in this case be and the same is hereby vacated and the rule to show cause why a new trial should not be granted is now dismissed and it is ordered that the judgment as originally entered in this case stand as the judgment of the Court. To this order counsel for defendant except. Commonwealth vs. The Public Ledger Co. There is nothing in the taxing statutes of Pennsylvania which discriminates between loans as far as regards the purposes for which they are created or that warrants relief from taxation of corporate obligations representing money borrowed for current indebtedness or expenses. |