L. & N. Rd. Co. v. Greene

Decision Date01 December 1925
Docket Number18933
Citation149 N.E. 876,113 Ohio St. 546
PartiesLouisville & Nashville Rd. Co. v. Greene, Admx.
CourtOhio Supreme Court

Negligence - Pleading - Action in Ohio for death from injuries received in Kentucky - Judicial notice not taken of statute of sister state - Amending petition, after verdict, alleging Kentucky statute - New or substituted cause of action not stated by amendment - Amendment after expiration of statute of limitation - Section 11363, General Code - Amendment relates back to commencement of action.

1. Suit was brought in an Ohio court for wrongful death resulting from injuries sustained in the state of Ken-tucky. The petition did not set forth any Kentucky statute authorizing recovery of damages therefor in that state. After trial and verdict a new trial was granted, and the plaintiff given leave to file an amendment to her petition setting forth a statute of Kentucky authorizing recovery of damages for wrongful death. Held: The Ohio courts cannot take judicial notice of the existence

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Death 17 C. J. § 139; Evidence, 23 C. J. § 1950; Statutes, 36 Cyc. pp. 1240, 1252.

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of such statute of a sister state. Not having been pleaded in the petition, that pleading was subject to demurrer.

2. Since the action could not have been based upon any common-law liability, an amendment to the petition setting forth such Kentucky statute was not a new, independent, or substituted cause of action, and was not a departure from the action commenced. It sought merely to cure a defect in the original pleading by supplying a missing allegation.

3. Under Section 11363, General Code, such amendment may be made after the period of limitation has expired, provided the action was commenced within that period. Such amendment relates back to the time of the commencement of the action.

On August 30, 1923, an action was instituted in the superior court of Cincinnati seeking to recover for personal injuries sustained on November 9, 1922, by William E. Greene, the husband of the plaintiff administratrix, which resulted in his death on the 13th of December following.

The petition in the nisi prius court alleged that the injuries were caused by the negligence of tile railroad company while operating its railroad in the state of Kentucky. The accident occurred in that state. In her petition the administratrix stated that "decedent left as next of kin his wife, Dora B. Greene, administratrix herein, and their daughter, Edith May Greene, who was born April ________________

Id., 17 C. J. §§ 36, 139, 157; Pleading, 31 Cyc. p. 416;

Id., 17 C. J. § 157; Limitation of Actions, 37 C. J. § 507; Pleading 31 Cyc. p. 408. ________________ 29, 1912 and that she brings this suit on their behalf."

Summons was issued on the same day that the petition was filed and served on the defendant, September 5,1923. The answer of the railroad company denied the allegations of negligence, and pleaded contributory negligence on the part of the deceased. On the issues thus joined the jury, on March 3, 1924 returned a verdict for the plaintiff. on the following day, March 4, 1924, the railroad company moved for judgment in its favor notwithstanding the verdict of the jury, for the reason that the pleadings did not state a cause of action in favor of the plaintiff. On March 6, 19)24, and prior to the disPosal of the former motion, plaintiff moved for a new trial because the verdict was contrary to law, and for other errors apparent upon the record. Prior to the disposal of these motions plaintiff had asked for leave to file an amendment to her petition. On March 15, 1924, the trial court set aside the verdict and granted a new trial for errors of law apparent upon the face of the record; overruled the motion of the defendant for judgment on the pleadings; and granted plaintiff's motion, permitting her to file an amendment to the petition.

The order of the trial court in the respects named was excepted to by the defendant below. The amendment to the petition, theretofore tendered to the court, and permitted to be filed, allegedù that the right to maintain the action for wrongful death was given by the laws of the state of Kentucky. The particular law therein set forth provided, in substance, that, when death resulted from an injury inflicted by negligence or wrongful act, damages could be recovered from the person or persons causing the same; that the action should be prosecuted by the personal representative of the deceased; and that the amount recovered, less certain costs, should be for the benefit of and go to the kindred of the deceased, as follows: If the deceased left a widow and no child, or descendants of a child, the whole should go to the widow, and, if the deceased left a widow and children, then such amount recovered should go one-half to the widow and one-half to the child or children of the deceased.

For refusing to grant its motion for judgment, and for sustaining the motion of the plaintiff below, permitting her to amend her petition, as aforesaid, and-granting her a new trial thereafter, error was prosecuted to the Court of Appeals of Hamilton County, which affirmed the orders and judgment of the trial court. The railroad company thereupon prosecuted error to this court, wherein it seeks a reversal of the judgments of the lower courts.

Messrs. Freiberg, Avery & Simmonds, for plaintiff in error.

Messrs. Nichols, Morrill, Stewart & Ginter, for defendant in error.

JONES J.

Suit was brought in the Ohio court for personal injuries sustained in the state of Kentucky, resulting in the death of William E. Greene. Section 10770, General Code of ohio, provides that when death is caused by wrongful act or neglect in another state, for which a right of action is given by a statute of that state, such right of action may be enforced in this state, but that the commencement of such action here must be within the time prescribed for the commencement of such action by the statute of the sister state.

It has been held by repeated decisions of this court that the Ohio courts may not take judicial notice of the statutes of a foreign or sister state, but that the latter must be pleaded and proven if recovery is based thereon. Evans v. Reynolds, 32 Ohio St. 163, and Williams v. Finlay. 40 Ohio St. 343. Likewise, if the defendant relies upon the statute of limitations of a sister state, in order to defeat recovery such a statute must be pleaded and proven. Whelan's Ex'r. v. Kinsley's Adm'r., 26 Ohio St. 131. No right of action existed at common law for death by wrongful act. It appears from the record, however, that Kentucky has passed a statute more or less in conformity with Lord Campbell's Act, giving a right of action where death has resulted from injury inflicted by negligence or wrongful act.

In her original petition plaintiff below failed to set forth any Kentucky statute giving her the right to maintain an action for wrongful death. No demurrer was filed to the petition, and the first time this point was raised by the defendant was after the verdict of the jury, when the railroad company under favor of Section 11601, General Code: asked the court to render judgment in its favor non obstante veredicto. At this stage of the case the plaintiff below asked the court to set aside the verdict and to grant her a new trial and leave to file an amendment to her petition, setting forth the Kentucky statute giving her the right to maintain the action. This leave was granted by the trial court, and the cause remains there for a new trial, unless this court concludes that the motion of the railroad company for judgment upon the pleadings should have been sustained.

The question presented here for decision is whether, under the statutes of ohio relating to amendments and procedure, the trial court erred in permitting the plaintiff below to amend her petition as stated, and, as a corollary thereto, whether, if the petition were amendable (since it is claimed that under the Kentucky statute of limitations the action must be begun within one year), such amendment could be made after the period of limitation for bringing the action under the Kentucky statute had expired. The answer to the second question rests upon the conclusion of this court whether the amendment to the original petition substituted a new, different, or independent cause of action, and was thus a departure from the action as first brought. For, if no new or distinct cause of action is set forth in the amendment, we think that by the overwhelming weight of authority an amendment to the action may be made after the period of limitation has run, provided the original action was commenced in due time. In such cases the amendment relates back to the commencement of the action.

"An amendment to a declaration, which sets up no new cause of action, and makes no new demand, relates back to the commencement of the action, and the running of the statute against the claim so pleaded is arrested at that point." 17 Ruling Case Law, 815.

In this state this principle has been announced in the following cases: B. & O. & C. R. R. Co. v. Gibson, 41 Ohio St. 145, and Zieverink v. Kemper, Receiver, 50 Ohio St. 208,34 N E., 250. In Texas & Pac. Ry. Co. v. Cox, 145 0. S., 593,12 S. Ct., 905, 36 L.Ed. 829, the following proposition was stated in the syllabus:

"The rule that an amended declaration which sets forth a new cause of action is subject to the operation of a limitation coming into force after the commencement of the action does not apply to an amendment which sets forth the same cause of action as that set forth originally."

In the case of Seaboard Air Line Railway v. Renn, 241 U, S., 290 293,36 S. Ct., 567, 568 (60 L.Ed. 1006), Mr. Justice Van Devanter,...

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