Fielder v. Ohio Edison Co.

• Citation: 109 N.E.2d 855,49 O.O. 265,158 Ohio St. 375,35 A.L.R.2d 1365
• Decision Date: 24 December 1952
• Docket Number: 32981,Nos. 32974,s. 32974
• Parties: , 35 A.L.R.2d 1365, 49 O.O. 265 FIELDER v. OHIO EDISON CO. (two cases).
• Court: Ohio Supreme Court

Page 375

158 Ohio St. 375

109 N.E.2d 855, 35 A.L.R.2d 1365, 49 O.O. 265

FIELDER v. OHIO EDISON CO. (two cases).

Nos. 32974, 32981.

Supreme Court of Ohio.

Dec. 24, 1952.

Syllabus by the Court.

1. An executor or administrator in maintaining an action under the provisions of Section 11235, General Code, for injuries to the person or property of his decedent sustained during his lifetime acts in his official capacity for the benefit of his decedent's estate.

2. An executor or administrator in maintaining an action under the provisions of Sections 10509-166 and 10509-167, General Code, for the wrongful death of his decedent acts as trustee not of the estate of his decedent but for the sole benefit of persons designated in the statute as the next of kin of the decedent. (May Coal Co. v. Robinette, Adm'r, 120 Ohio St. 110 [165 N.E. 576, 64 A.L.R. 441], and Epinger, Adm'x, v. Wade, 142 Ohio St. 460 , approved and followed.)

3. As a general rule, a person can not in the same action sue in more than one distinct right or capacity, and, in the absence of an enabling statute, an executor or administrator is precluded from joining a cause of action for personal injury to his decedent with a cause of action for the decedent's wrongful death.

4. An administrator's cause of action for pain and suffering of his decedent may not be joined with a cause of action for the wrongful death of the same decedent; both causes of action do not affect all the parties to the action as required by statute.

These cases are in this court on appeals from the Court of Appeals for Summit county by reason of the allowance by this court of motions to certify the record.

The defendant, Ohio Edison Company, appellant in case No. 32974, seeks a reversal of the judgment of the Court of Appeals so far as it affirmed that part of the judgment of the Common Pleas Court in favor of the 'plaintiff,' Arnold L. Fielder, administrator of the estate of David Arthur Fielder, in the amount of $30,000 for the claimed wrongful death of his decedent, and on a cause of action denominated as a second cause of action in the petition.

The administrator, appellant in case No. 32981, seeks a reversal of the judgment of the Court of Appeals so far as it reversed that part of the judgment of the Common Pleas Court in his favor in the amount of $5,000 for pain and suffering of the decedent, and on a cause of action denominated as a first cause of action in the petition. The entire judgment was reviewed in the Court of Appeals and will be considered by this court.

David Arthur Fielder, the decedent, 15 1/2 years of age, died about 31 hours after he came in contact with a high-voltage wire heavily charged with electricity, which was a part of the Ohio Edison distribution system at the village of Doylestown.

The administrator charges defendant with negligence in the maintenance and operation of its wire over a street of the village in allowing the wire to become detached from the pole on which it was strung and thus permitting it to come in contact with persons normally using the street, as a result of which the decedent was electrocuted.

The petition sets out what is denominated therein as two causes of action, the first for damages for the pain and suffering of decedent for 31 hours preceding his death, and the second for the alleged wrongful death of decedent.

The defendant demurred to the petition on the ground that the two causes of action were improperly joined in that the real plaintiff in one cause of action is defferent from that in the other. The demurrer was overruled, after which an answer was filed by the defendant setting out as its first defense a general denial as to each cause of action and as a second defense to each cause of action a charge of contributory negligence on the part of the decedent in taking hold of the wire with his hand when he knew or should have known that it was charged with electricity. A verdict was rendered in favor of the administrator on each cause of action, $5,000 on the first cause of action and $40,000 on the second cause of action. As to the latter amount, the court granted a remittitur of $10,000, which was accepted by the administrator, reducing such amount to $30,000. Judgment was rendered accordingly.

On appeal to the Court of Appeals, that court held that the two causes of action were properly joinable and that no error prejudicial to the defendant had intervened because of such joinder; reversed that part of the judgment based on the first cause of action, on the ground that there was no evidence 'of conscious pain and suffering endured by plaintiff's decedent'; and affirmed that part of the judgment based on the second cause of action.

Frank Leonetti, Cleveland, for Fielder.

Slabaugh, Guinther & Pflueger and George T. Roderick, Akron, for Ohio Edison Co.

HART, Judge.

The principal ground of complaint made by the defendant is that the Court of Appeals erred in affirming that part of the judgment of the trial court based on the second cause of action, notwithstanding there was an improper joinder of causes of action.

The solution of this problem calls for an analysis of the nature of the causes of action so joined and an examination of the scope of the statute permitting the joinder of causes of action. The right of action based on the first cause of action, popularly known as 'survivor action,' is provided by Section 11235, General Code, reading as follows:

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

Under this statute the courts of this state have consistently held that, where one is wrongfully injured and later dies, his estate through his administrator or executor may recover for pain or suffering endured by the person so injured. The administrator or executor in maintaining such action acts in his official capacity for the benefit of the decedent's estate.

The right of action based on the second cause of action, popularly known as a 'wrongful death action', is provided by Sections 10509-166 and 10509-167, General Code, the pertinent parts of which are as follows:

Section 10509-166. 'When the death of a person is caused by wrongful act, neglect or default such as would have entitled the party injured to maintain an action and recover damages in respect thereof, if death had not ensued, the corporation which, or the person who would have been liable if death had not ensued, or the administrator or executor of the estate of such person, as such administrator or executor, shall be liable to an action for damages, notwithstanding the death of the person injured * * *.'

Section 10509-167. 'An action for wrongful death must be brought in the name of the personal representative of the deceased person, but shall be for the exclusive benefit of the surviving spouse, the children and other next of kin of the decedent. The jury may give such damages as it may think proportioned to the pecuniary injury resulting from such death, to the persons, respectively, for whose benefit the action was brought.'

The administrator or executor in maintaining this type of action acts as a trustee not for the estate but for the sole benefit of persons designated in the statute as the next of kin of the decedent. The administrator or executor is a mere nominal party to the action, having no interest in the case for himself or the estate he represents. The action is for the sole benefit of such next of kin. Wolf, Adm'r, v. Lake Erie & Western Ry. Co., 55 Ohio St. 517, 45 N.E. 708, 36 L.R.A. 812.

Judge Allen, in summarizing the implications of the procedure adopted in the case of May Coal Co. v. Robinette, Adm'r, 120 Ohio St. 110, 165 N.E. 576, 577, 64 A.L.R. 441, presenting questions similar to those in the instant cases, said:

'It is in brief the contention of the plaintiff in error that the parties, plaintiff and defendant, in the two cases are the same, that the issues of negligence and contributory negligence raised by the pleadings are identical, that the real parties in interest, the beneficiaries under both actions, are exactly the same, and that hence the adverse termination of the survivor action is a complete bar to the prosecution of the death action. This court, however, cannot agree that the real parties in interest are exactly the same, nor that the causes of action are identical. Under section 10772, the death action is to be prosecuted by the administrator, for the exclusive benefit of the wife or husband and children, or, if there be neither of them, then of the parents and next of kin of the decedent. The action prosecuted under section 11235 is for the benefit of the estate. If any judgment is secured under the survivor action, it may be entirely consumed by creditors, and may be of no benefit whatever to the wife or husband and children, the parents or next of kin. It is the death which is the foundation of [the present] action, and not the injury. Robinson v. C. P. Ry. Co. [1892] L.R.A. [pp]. C[as], 481. In the case of the survivor action, the administrator sues as legal owner of the general personal estate which has descended to him in course of law; under section 10770, he sues as trustee in respect of a different right altogether, on behalf of particular persons designated in the act. While the machinery of the action in the one case is the same as the machinery in the other, the death action is an action given expressly by the statute, and the rights which give rise to the two actions are entirely different. Leggott, Admx., v. G. N. Ry. Co. [1875-76], 1 L.R., Q.B.Div., 599.' (Italics supplied.)

The procedure adopted by the Common Pleas Court and the Court of Appeals in the instant cases confirms the fact that two separate and distinct actions were litigated therein as two causes of action in a...