May Coal Co. v. Robinette

• Decision Date: 06 March 1929
• Docket Number: 21334
• Parties: The May Coal Co. v. Robinette, Admr.
• Court: Ohio Supreme Court

165 N.E. 576

120 Ohio St. 110

The May Coal Co. v. Robinette, Admr.

No. 21334

Supreme Court of Ohio

March 6, 1929

Executors and administrators - Independent right of action for death or injuries to decedent - Sections 10770 and 10772, General Code - Judgment in one action not bar to recovery in the other.

1.

Sections 10770 and 10772, General Code, give an independent right of action for the benefit of the persons named in Section 10772 where death has resulted from the injuries, to recover for such pecuniary injury resulting from such death, where such right arises from an act, neglect or default, such as would have entitled such person to maintain an action and recover damages in respect thereof, if death had not ensued.

2.

The two actions, the survivor action and the death action, although prosecuted by the same personal representative, are not in the same right, and hence a judgment for the defendant in one case is not a bar to a recovery in the other.

This is an error proceeding instituted to reverse a judgment of the Court of Appeals of Lucas county, Ohio, which reversed a judgment of the court of common pleas of Lucas county and remanded the cause for further proceedings according to law. The suit was instituted by the defendant in error, Paul Robinette, as administrator of the estate of Lorena Estella Robinette, against the May Coal Company, under favor of Section 10770 et seq., General Code, to recover damages for the alleged wrongful death of the decedent, for the benefit of the widower and next of kin. At the same time that he filed the petition in the instant case, the defendant in error, as administrator of the estate of Lorena Estella Robinette, deceased, also filed an action for damages against the May Coal Company, in which action he claimed damages for the benefit of the decedent's estate, for personal injury and property damage sustained by the decedent in an automobile accident upon July 13, 1927. The decedent died upon August 9, 1927. The survivor action came on for trial before the court and a jury prior to the death action, and the jury returned a verdict in favor of the May Coal Company. Final judgment was entered upon this verdict, and no proceedings in error were perfected to reverse this judgment.

After final judgment was rendered in the survivor action, the plaintiff in error herein, with leave of court, filed in the death action an amended answer, in which it set up as an additional defense the verdict and final judgment in the survivor action, and pleaded that this verdict and judgment constituted res adjudicata and a bar to the pending action. To this third defense of the amended answer, the administrator, plaintiff below, filed a motion to strike and also a demurrer, upon the ground that the same did not state a good and valid defense. The defendant below, the May Coal Company, also filed its motion for a judgment on the pleadings. The motion to strike and the demurrer of the plaintiff below were overruled by the court, and the defendant's motion for judgment on the pleadings was granted and judgment was rendered for the defendant. Thereupon proceedings in error were prosecuted by the administrator to the Court of Appeals of Lucas county, which court reversed the judgment of the common pleas court and remanded the cause for further proceedings according to law, with instructions to the trial court to sustain the demurrer of plaintiff administrator to the third defense of the amended answer, and to grant the motion of the plaintiff administrator to strike the defense therefrom.

The case comes into this court upon allowance of motion to certify the record.

Messrs. Rheinfrank, Simmons, Lindecker & Lamb, for plaintiff in error.

Mr. Ed P. Buckenmyer, for defendant in error.

ALLEN J.

Is a judgment adverse to the administrator of a decedent in his action to recover dam- ages for the benefit of the estate of his decedent, arising out of a personal injury, a bar to the subsequent prosecution by the administrator of an action under Section 10770 et seq., General Code, for the benefit of the wife, husband, and children, or parents and next of kin of the decedent?

Since the Court of Appeals reversed the judgment of the trial court for failure to sustain the demurrer to the third defense of the answer, this is the single legal question presented by this record. The solution of this question depends upon the construction of Sections 10770, 10772, and 11235, General Code, which read in their pertinent portions as follows:

Section 10770. "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, * * * shall be liable to an action for damages, notwithstanding the death of the person injured * * *."

Section 10772. "Such actions shall be 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 person whose death was so caused. * * *

"It must be brought in the name of the personal representative of the deceased person, and 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."

Section 11235. "In addition to the causes which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and the action may be brought notwithstanding the death of the person entitled or liable thereto."

The survivor action which was instituted here to recover damages for the benefit of the estate was tried first, and decided adversely to the administrator. Since no error proceedings were prosecuted to the judgment of the court of common pleas in the survivor action, the judgment for the defendant in that action stands as final.

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 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.

, L.R A.C., 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...