Kyes v. Pennsylvania R. Co.
| Decision Date | 17 December 1952 |
| Docket Number | No. 33002,33002 |
| Citation | 49 O.O. 239,109 N.E.2d 503,158 Ohio St. 362 |
| Parties | , 49 O.O. 239 KYES v. PENNSYLVANIA R. CO. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Under the provisions of Section 10509-167, General Code, an action for wrongful death must be brought in the name of the personal representative of the deceased person.
2. This statute is procedural and remedial in its nature, and should be construed liberally.
3. In such an action the representative is a mere nominal party having no interest in the case for himself or the estate he represents, and such action is for the exclusive benefit of the statutory beneficiaries. (Paragraph one of the syllabus in the case of Wolf, Adm'r, v. Lake Erie & Western Ry. Co., 55 Ohio St. 517, 45 N.E. 708, 36 L.R.A. 812, approved and followed.)
4. The term 'personal representative,' as used in this statute, includes an ancillary administratrix.
5. In such an action it is not error to permit the substitution of an administratrix as party plaintiff after the lapse of the two-year statutory period of limitation where the cause of action remains unchanged and the suit was duly instituted by an ancillary administrator within the period.
6. The provisions of Section 1685, General Code, that a motion for a new trial shall be determined within thirty days after submission are directory and not mandatory.
7. The provisions of this statute are binding on the conscience of a judge, but failure to comply therewith does not deprive the court of jurisdiction of the cause.
This action was instituted in the Court of Common Pleas of Columbiana County, Ohio, by an ancillary administrator appointed by the Court of Probate of that county for the purpose of recovering for the wrongful death of the decedent, Omar W. Renner, a resident of the state of Pennsylvania, who was killed on April 28, 1935, when the automobile in which he was riding was struck by a train of the defendant railroad company, at a crossing in the city of East Palestine located in the above-mentioned county.
When the capacity of the ancillary administrator was challenged, his appointment was vacated by the Court of Probate, and the present administratrix, the decedent's mother, was appointed in Pennsylvania. Then the Court of Common Pleas permitted her to be substituted as the party plaintiff herein in place of the ancillary administrator.
In the first the jury disagreed, but the retrail resulted in a verdict and judgment for the plaintiff.
On an appeal to the Court of Appeals on questions of law, the judgment of the Court of Common Pleas was affirmed.
The cause is in this court for review by reason of the allowance of the defendant's motion to certify the record.
Burt, Carson, Lynch & Vogelgesang, Canton, for appellant.
Falls, Hazel & Kerr, Youngstown and L. M. Kyes, East Palestine, for appellee.
This litigation results from a railroad crossing collision at about one o'clock at night. Four young men were riding in the automobile that was struck. Three of the four were brothers. All were killed instantly. This decedent was one of the brothers. All lived in Enon Valley, Pennsylvania.
The defendant contends that the trial court was in error in permitting the substitution of the present administratrix for the ancillary administrator, the original party plaintiff, after the lapse of the two-year statutory period of limitation.
The plaintiff, as did the lower courts, relies on the decision of this court in the case of Douglas, Adm'x, v. Daniel Bros. Coal Co., 135 Ohio St. 641, 22 N.E.2d 195, 123 A.L.R. 761. The first paragraph of the syllabus reads:
The defendant seeks to distinguish that case by asserting that there there was no difference of persons involved, that the original plaintiff actually became qualified, and that there was an honest intent and mistake, while in the instant case there was a substitution of an entirely different person acting in a different capacity, there was a failure of the ancillary administrator to qualify, and there was knowledge of the lack of capacity.
However, in making these contentions the defendant disregards the controlling facts that this cause of action remains unchanged and that the plaintiff is not the real party in interest but acts merely as a nominal or formal party or statutory trustee for the statutory beneficiaries who are the real parties. Under the plain provisions of Section 10509-167, General Code, it is mandatory that '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.' In the first paragraph of the syllabus in the case of Wolf, Adm'r, v. Lake Erie & Western Ry. Co., 55 Ohio St. 517, 45 N.E. 708, 36 L.R.A. 812, this court held:
In the opinions in the Wolf and Douglas cases, supra, it is observed that under the provisions of the statute it is not even necessary that the representative bring the action. The requirement is merely that the action be brought in his name.
Furthermore, this statute is procedural and remedial in its nature, and in conformity with the general rule it should be construed liberally. It is included in Part Third of the General Code, and Section 10214, General Code, reads as follows:
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...105 Ohio St. 535, 138 N.E. 63; State ex rel. Ticknor v. Randall (1949), 152 Ohio St. 129, 87 N.E.2d 340; Kyes v. Pennsylvania R.R. Co. (1952), 158 Ohio St. 362, 109 N.E.2d 503; State ex rel. Turrin v. County Court (1966), 5 Ohio St.2d 194, 214 N.E.2d The right of an accused to a speedy tria......
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Ramage v. Central Ohio Emergency Serv., Inc.
...court has held that the wrongful death statute is "remedial in nature, and should be construed liberally." Kyes v. Penn RR. Co. (1952), 158 Ohio St. 362, 49 O.O. 239, 109 N.E.2d 503, paragraph two of the syllabus. See, also, French v. Dwiggens (1984), 9 Ohio St.3d 32, 9 OBR 123, 458 N.E.2d ......
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...as a nominal or formal party or statutory trustee for the statutory beneficiaries who are the real parties.” Kyes v. Penn. R. Co., 158 Ohio St. 362, 364, 109 N.E.2d 503 (1952). To qualify as a personal representative, an individual must be court-appointed as the executor or administrator of......
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