Hillard v. Western & Southern Life Ins. Co.

• Decision Date: 06 January 1941
• Citation: 68 Ohio App. 426,34 N.E.2d 75
• Court: Ohio Court of Appeals
• Parties: HILLARD v. WESTERN & SOUTHERN LIFE INS. CO.

34 N.E.2d 75

68 Ohio App. 426

HILLARD v. WESTERN & SOUTHERN LIFE INS. CO.

Court of Appeals of Ohio, Third District, Allen.

January 6, 1941

B. F. Welty, of Lima, for plaintiff-appellant.

Wheeler Bentley, Neville & Cory, of Lima, for defendant-appellee.

GUERNSEY Judge.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Allen county, Ohio, dismissing the petition of the plaintiff Darius W. Hillard, as administrator with the will annexed of Roma H. Hillard, at his costs, after sustaining a general demurrer of the defendant The Western and Southern Life Insurance Company to the petition, and after plaintiff had signified his desire to not further plead.

The only assignment of error is that the court erred in sustaining the demurrer of the defendant to the petition.

The petition filed by the plaintiff alleges is substance that Darius W. Hillard was appointed and qualified as administrator with the will annexed of Roma H. Hillard alleges the corporate capacity of the defendant; alleges that said Roma H. Hillard had on the 20th day of June, 1938, for a consideration stated in the petition secured a policy of life insurance from the defendant under which the defendant contracted and agreed to pay a stated sum upon her death.

It is further alleged that on June 27, 1938, some seven days after the parties had entered into the contract of life insurance aforesaid, plaintiff's decedent submitted to an operation during the course of which it was learned that she was suffering from cancer of the liver; and further alleges that plaintiff's decedent had no knowledge of the fact that she was suffering from such disease until August 11, 1938 when the agent of the defendant called upon her at her home and informed her of such fact, plaintiff's decedent at the time being under the care of a physician and under the influence of morphine to quiet her pain, and recovering from a surgical operation.

The petition further alleges that said agent at said time informed plaintiff's decedent that she had obtained said insurance by fraudulent representation.

The petition further alleges 'That said agent informed said Roma H. Hillard that she had cancer at the time she secured said insurance, which statement so made was willful, intentional and wanton to cause said Roma H. Hillard to surrender such policy.'

The petition further alleges that the agent of the defendant demanded the surrender of such policy of insurance, which policy was thereupon surrendered by plaintiff's decedent.

The petition further alleges that after plaintiff's decedent had received the information as aforesaid, to wit: 'that she had cancer she refused to take any nourishment, became despondent, went to bed, suffered mental anguish and great pain, and died from the shock of said information on the 13th day of August, 1938.'

The petition further alleges that said agent of the defendant while in the course of his employment 'wrongfully and willfully killed said Roma H. Hillard in the manner as herein set forth, to the damage of the plaintiff in the sum of $10,000.'

The petition further alleges that because of said injuries to Roma H. Hillard plaintiff incurred the sum of $245.95 funeral expenses.

The prayer of the petition is for judgment against the defendant in the sum of $10,245.95 with interest on $245.95 from the 13th day of August, 1938, and for costs of suit.

The demurrer to the petition is upon the ground that the petition upon its face fails to disclose facts sufficient to state a cause of action in law against the defendant.

It will be noted that this is an action by an administrator in his representative capacity not brought under the provisions of Sections 10509-166, 10509-167, 10509-168, General Code, giving an independent right of action for the benefit of the persons named in Sections 10509-167, 10509-168, where death has resulted from the injuries, to recover for such pecuniary injury resulting from such death, where such right arises from an act, neglect or default, such as would have entitled such person to maintain an action and recover damages in respect thereof, if death had not ensued.

Section 11235, General Code, provides that: 'In addition to the causes which survive at common law, causes of action for * * * injuries to the person * * * also shall survive; and the action may be brought notwithstanding the death of the person entitled or liable thereto.'

Under the provisions of this section an administrator may maintain an action independent of the provisions of Sections 10509-166, 10509-167, 10509-168 of the General Code, for injuries sustained by his decedent, in the same manner the decedent could have maintained such action if he had survived. In such an action by the administrator the damages are limited to damages for the injuries accruing during the lifetime of the decedent and do not comprehend damages for death resulting from such injuries, or funeral expenses occasioned by such death.

While the petition in the instant case alleges that the agent of the defendant wrongfully and willfully killed plaintiff's decedent, such allegation, together with the allegation as to the amount of funeral expenses, insofar as this action is concerned, are mere surplusage, and the other facts alleged in the petition are sufficient to state a cause of action in favor of...