Ellis v. Garwood
| Decision Date | 16 July 1958 |
| Docket Number | No. 35366,35366 |
| Citation | 152 N.E.2d 100,168 Ohio St. 241 |
| Parties | , 6 O.O.2d 22 ELLIS, Adm'x, Appellee, v. GARWOOD, Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. Where a nonresident of the state of Ohio is killed in an automobile accident which occurs in Ohio, his personal representative may bring an action in this state against a nonresident motor vehicle operator who is alleged to have caused the death, pursuant to the provisions of Sections 2125.01, 4515.01 and 2703.20, Revised Code, which establish the right to recover for wrongful death, authorize the bringing of an action for injury arising out of the operation of a motor vehicle in the county in which the injury occurred and provide for service upon nonresident operators of motor vehicles.
2. Where the personal representative of one nonresident of Ohio sues another nonresident in an Ohio count for damages for wrongful death arising from an automobile accident which occurred in this state, the case is governed by both the substantive and procedural laws of Ohio.
3. In a wrongful-death action brought in Ohio, the place of the injury resulting in the death, by the personal representative of an employee of a foreign corporation against a co-employee thereof, where an answer is filed which alleges that the plaintiff had received an award of compensation under the workmen's compensation law of the foreign state, and that such law provides that such compensation shall constitute 'the exclusive remedy to an employee, or * * * his dependents, when such employee is * * * killed by the negligence or wrong of another in the same employ,' the principle of 'lex loci delicti' applies, the substantive law of Ohio, rather than the substantive law of the foreign state, is controlling, the law of Ohio does not preclude such an action, and such answer does not state a defense and is demurrable.
This is a wrongful-death action instituted in the Court of Common Pleas of Cuyahoga County. The cause is before this court on the petition, answer, the demurrer to the first affirmative defense of the answer, the docket and journal entries of the Court of Common Pleas, and the docket and journal entries of the Court of Appeals.
The plaintiff is the administratrix of the estate of her deceased husband, Robert Ellis, who died December 3, 1954, as a result of an automobile collision on December 1, 1954, at an intersection in the village of Independence, Cuyahoga County, Ohio. The decedent and the defendant, John S. Garwood, were employed as engineers for the Sperry Gyroscope Company of New York, and both of them lived in and were residents of the state of New York. The defendant was the engineer section head and the decedent was a sales engineer of said company.
The petition states two causes of action--one based upon the alleged negligence of the defendant and the other based upon his alleged willful and wanton misconduct.
The answer admits that the decedent was employed as a sales engineer by the Sperry Gyroscope Company, and that the defendant was 'likewise employed by said company'; states that, at the time of the accident, he and the decedent were on the business of their common employer and were then and there acting within the scope of their employment; admits the collision and injuries of the decedent; but denies generally the other allegations contained in the petition.
The answer, for a 'first affirmative defense,' alleges:
'* * * the Sperry Gyroscope Company was subject to the provisions of the Workmen's Compensation Law of the state of New York, and that in obedience to said law it was covered by an insurer under a policy of insurance, whereby premiums were paid to said insurer in consideration of the latter's agreement to indemnify the company against its liability under the Workmen's Compensation Law to employees who might be injured in the scope of their employment, or to the dependents of employees who might be killed while acting in the scope of their employment.
'Defendant states that following the death of Robert Ellis, the plaintiff, as widow of said decedent, pursued her right to compensation under the Workmen's Compensation Law of New York, on her own behalf as well as on behalf of the decedent's surviving children. After filing an application for death benefit compensation, an award was made, the present value thereof at the time of its making being approximately $32,000. Defendant states that plaintiff has received and will continue to receive for an indeterminable time payments in the nature of death benefits under the said Workmen's Compensation Law of New York, the said payments inuring to the benefit of herself as widow and the decedent's surviving children.
'Defendant states that Section 29(6) of the New York Workmen's Compensation Law provides as follows:
"The right to compensation or benefits under this chapter shall be the exclusive remedy to an employee, or in case of death, his dependents, when such employee is injured or killed by the negligence or wrong or another in the same employ.'
'Defendant further states that in construing Section 29(6) of the Workmen's Compensation Law, the courts of New York have held that where an employee is injured by the negligence or wrong of a fellow employee when both are acting in the course of their employment, and their employer is covered under the Workmen's Compensation Law, the injured employee, or in case of death, his dependents, is barred from maintaining an action at law against the employee whose negligence or wrong was the cause of the injury or death.'
For such defense, it is then alleged that by virtue of Section 29(6) of the New York Workmen's Compensation Law, McKinney's Consol.Laws, c. 67 and plaintiff's acceptance of death benefits thereunder, plaintiff is barred from maintaining her present action in the state of Ohio.
A demurrer to the answer as to defendant's 'first affirmative defense,' on the ground that Section 29(6) of the New York Workmen's Compensation Law does not constitute a defense to either of the two causes of action set forth in the petition, was overruled. Plaintiff not desiring to plead further, and at her request, the action was dismissed at her costs, for which judgment was rendered.
An appeal was thereupon prosecuted to the Court of Appeals which reversed the judgment and remanded the cause to the Court of Common Pleas for further proceedings.
The cause is before this court upon the allowance of a motion to certify the record.
Charles H. Ayres, Cleveland, for appellee.
McConnell, Blackmore, Cory, Burke & Kundtz, S. Burns Weston and Mark O'Neill, Cleveland, for appellant.
The issue presented to this court is whether the provisions of Section 29(6) of the New York Workmen's Compensation Law, McKinney's Consol.Laws, c. 67 and the plaintiff's acceptance of death benefits thereunder bar the plaintiff from maintaining this action in the state of Ohio.
Under the New York Workmen's Compensation Law, the right to compensation or benefits thereunder is the exclusive remedy of an employee or, in case of his death, his dependents, where such employee is injured or killed by the negligence or wrong of another in the same employ.
Under Ohio law this matter is treated in Section 4123.54, Revised Code, as follows:
'If an employee is a resident of a state other than this state and is insured under the workmen's compensation law or similar laws of a state other than this state, such employee and his dependents are not entitled to receive compensation or benefits under sections 4123.01 to 4123.94, inclusive, of the Revised Code, on account of injury, disease, or death arising out of or in the course of employment while temporarily within this state and the rights of such employee and his dependents under the laws of such other state shall be the exclusive remedy against the employer on account of such injury, disease, or death.' (Emphasis added.)
Thus, the issue is presented as to whether this action against a co-employee, prohibited...
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