Fisher v. Butler

• Decision Date: 19 April 1966
• Docket Number: No. 20135,20135
• Citation: 224 N.E.2d 923,11 Ohio Misc. 116
• Parties: , 40 O.O.2d 139, 40 O.O.2d 355 Earl M. FISHER, Administrator of the Estate of Henry H. Hannon, deceased, Plaintiff, v. George L. BUTLER, Defendant.
• Court: Ohio Court of Common Pleas

Page 116

11 Ohio Misc. 116

224 N.E.2d 923, 40 O.O.2d 139, 40 O.O.2d 355

Earl M. FISHER, Administrator of the Estate of Henry H. Hannon, deceased, Plaintiff, v. George L. BUTLER, Defendant.

No. 20135.

Court of Common Pleas of Ohio, Clinton County.

April 19, 1966.

Syllabus by the Court

1. Fiduciary plaintiff in action for wrongful death of his decedent, under Section 2125.02 et seq., Revised Code, must specifically name the persons, with relationship, for whose benefit the action is brought.

2. Fiduciary plaintiff in action brought under the Survivor statute Section 2305.21, Revised Code, for injuries and their concomitants for which deceased would have had cause of action need not specifically name the survivors of decedent, with their relationship.

Frank B. Jandes, Wilmington, for plaintiff.

Dinsmore, Shohl, Barrett, Coates & Deupree, Powell McHenry, Cincinnati, for defendant.

SWAIM, Judge.

Plaintiff fiduciary brought suit for alleged injury and resulting death of his decedent caused by defendant's wrongful act, alleging his appointment, the location of certain streets, one of which decedent was crossing when struck by defendant's auto, and stating as to alleged negligent acts of defendant following with several 'specifications of negligence.' He also states:

'* * * that this action is brought for the benefit of the next kin and for the benefit of the estate-'

and then sets forth the amount of damage claimed and prays for judgment.

Defendant moves the Court to order the Petition to be made definite and certain by the 'setting forth the next of kin for whose benefit the action is allegedly brought' and to order the striking out of the words 'for the benefit of the estate.'

The plaintiff has confused and intermingled two different causes of action, entirely different in nature, requiring two different findings by a jury, without the required separation of them.

Section 2309.05, Revised Code, provides that:

'The plaintiff may unite several causes of action in the same petition, * * * when they are included in any of the following classes: * * *

(K) Claims by an executor or administrator for the wrongful death of his decedent under sections 2125.01 to 2125.04, inclusive, of the Revised Code, and for injuries to the person or property, or both, of his decedent, surviving under section 2305.21 of the Revised Code, when both claims arise out of the same wrongful act or acts; * * *.'

It is provided in Section 2125.02, Revised Code, that such action for wrongful death-

'* * * 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 thinks proportioned to the pecuniary injury resulting from such death to the persons, respectively, for whose benefit the action was brought. * * *'

The survivors of...