Sabol v. Pekoc
| Decision Date | 03 December 1947 |
| Docket Number | 30978. |
| Citation | 76 N.E.2d 84,148 Ohio St. 545 |
| Parties | SABOL v. PEKOC. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. The provision of Section 10509-167, General Code, that 'except as otherwise provided by law, every such action [for wrongful death] must be commenced within two years after the death of such deceased person,' is a restriction qualifying the right of the action and is not merely a time limitation upon the remedy. (Paragraph one of the syllabus in Pittsburg C. & St. L. Ry. Co. v. Hine, Admx., 25 Ohio St 629, approved and followed.)
2. Where a petition in an action for wrongful death shows upon its face that the action was not commenced within two years after such death, a cause of action is not stated and a demurrer to the petition should be sustained.
3. Where an action for wrongful death has been brought within two years after the death, and after two years have elapsed and the action has been disposed of otherwise than upon the merits, Section 10509-169, General Code, does not permit the commencing of a new action based on the same death against a different person, within one year after the date of disposition of the former action.
Appeal from Court of Appeals, Cuyahoga County.
On December 24, 1945, plaintiff, Steve Sabol, as administrator filed a petition against defendant, Frank J. Pekoc, Jr appellant herein, in the Court of Common Pleas of Cuyahoga county, in which he alleged that he had been duly appointed and qualified as the administrator of the estate of Mary Sabol, deceased; that defendant was the owner of certain premises in the city of Cleveland of which plaintiff was a tenant at the times mentioned in the petition; that defendant during such tenancy, and subsequent to the injuries which led to the death of plaintiff's decedent, fraudulently represented to plaintiff that defendant's mother was the owner of the premises and defendant was merely her agent to look after the renting of the premises and the collection of the rents; and that, as a matter of fact, defendant was the real owner of the premises.
The petition alleged further that plaintiff's decedent received injuries as the result of the negligence of defendant while the decedent was doing work which defendant instructed her to perform on the premises in question, of which premises decedent was a janitress; that decedent died of such injuries on July 20, 1942; that by reason of defendant's fraudulent representations plaintiff brought an action against defendant's mother as the owner of the premises; that defendant encouraged such lawsuit and represented that defendant's mother was adequately protected by insurance and defendant wished justice done to plaintiff; that it was not until October 1944, that plaintiff learned of the fraud; and that the action against defendant's mother was not disposed of until the term of court at which the action against defendant was instituted.
The petition then set up the parties for whose benefit the action was brought and asked for damages in the sum of $10,000.
To this petition defendant on January 25, 1946, filed a demurrer on the grounds that the action was not brought within the time limited for the commencement of such actions and that the petition did not state facts which show a cause of action against defendant. The demurrer was sustained, plaintiff filed a motion for a rehearing on the demurrer and defendant filed a motion to dismiss the action. The Common Pleas Court overruled the motion for a rehearing, sustained the motion to dismiss the action and dismissed the action.
The Court of Appeals reversed the judgment of the Common Pleas Court and remanded the cause with instructions to overrule the demurrer and for further proceedings according to law.
It is from the judgment of the Court of Appeals that an appeal has been taken to this court, a motion to certify the record having been allowed.
John H. McNeal, Harley J. McNeal, and Burgess, Fulton & Fullmer, all of Cleveland, for appellant.
Francis E. Picklow and H. E. Elliott, both of Cleveland, for appellee.
The sole question in this case is whether the Court of Common Pleas erred in sustaining the demurrer to plaintiff's petition.
It is fundamental that a demurrer, for its own purpose, admits the truth of all the well-pleaded facts in the pleading to which the demurrer is addressed. Therefore, we must assume for the purpose of a decision in this case that plaintiff's decedent was injured and died, as set out in the petition; that defendant fraudulently represented to plaintiff that defendant's mother was the owner of the premises upon which plaintiff's decedent was working at the time she was injured; that by reason of the fraudulent representations of defendant, plaintiff brought an action against defendant's mother; that defendant encouraged such action; that by reason thereof plaintiff did not learn of the fraud until October 1944; and that the action against defendant's mother was not disposed of until the term of court at which the action was brought against defendant.
It is obvious from the face of the petition that the instant action was not brought until more than two years after the death of plaintiff's decedent, but it is claimed by plaintiff, and the Court of Appeals so held, that the active fraud practiced by defendant was the cause of the failure to bring the action within two years from the death, and that, therefore, the time for bringing the action did not begin to run until the fraud was discovered and defendant by his own fraudulent conduct was estopped from asserting the defense of the time limit. In sustaining this view the Court of Appeals apparently took the position that the time limit in an action for wrongful death was of the same nature as the statutes of limitations for other actions.
Although the case of Fee's Adm'r v. Fee, 10 Ohio 469, 36 Am.Dec. 103, decided that 'a fraudulent concealment by which the plaintiff has been delayed will not enlarge the time for bringing an action under the statute of limitations,' the Court of Appeals distinguished that case from the present one on the ground that there was a distinction between the rules of common law and those of equity, and law and equity actions were separate at the time of the Fee case.
The Court of Appeals held that the authority of that case was impaired by the fact that, after it was decided, the Constitution of Ohio of 1851 was established (see Section 2, Article XIV) and under such Constitution the Code of Civil Procedure was so enacted that 'the distinction between actions at law and suits in equity and the forms of all such actions and suits [heretofore existing], are abolished; and in their place there shall be hereafter but one form of action which shall be known as a civil action.'
The Court of Appeals referred also to the case of Howk v. Minnick, 19 Ohio St. 462, 2 Am.Rep. 413, which held that the fraudulent concealment by defendant of his guilt in stealing certain coins did not prevent the statute of limitations from running against the right to a civil action for the conversion of such coins.
The Court of Appeals held that, although the Howk case was decided after the constitutional changes referred to, in that case the Supreme Court relied strongly on the Fee case. The Court of Appeals then proceeded to cite many cases which it said constituted the great weight of authority, to the effect that one may not take advantage of his own wrongdoing and seek refuge under the statute of limitations when he has by fraudulent conduct or representations successfully concealed his liability beyond the period of the statute.
There would be much to arrest the attention in what the Court of Appeals said if the time element in the wrongful-death statute constituted an ordinary limitation to the bringing of an action thereunder, but according to the view we take, such is not the case. At common law there is no action for wrongful death and in case a plaintiff in a personal injury action died prior to the trial thereof the action abated.
The first wrongful-death act, known as Lord Campbell's Act, was passed by the English Parliament in 1846, and, thereafter, the states of our nation began to pass similar acts. The first one in our state appeared in 1851, 49 Ohio Laws, 117. Before that time there was no action for wrongful death in this state. That act provided such an action should be brought by the personal representative of the decedent for the benefit of the widow and next of kin against the person or corporation causing the death, that there should be a limitation of $5,000 on the amount of damages, and that the action must be brought within two years from the death of decedent.
That act was amended in 1872, the amendment providing that the action must be brought by the personal representative for the benefit of the widow and next of kin against the person or corporation causing the death, with a limit of $10,000 on the amount of damages but no limitation as to the time within which the action must be brought.
In 1880, the act was amended providing for an action by the personal representative for the benefit of the wife or husband, and children, or if none, the parents and next of kin, against the person or corporation causing the death, with a limit of $10,000 on the amount of damages and with a provision that the action must be commenced within two years of death.
In 1893, the 1880 act was amended, with no change except that the amendment extended the liability so as to be a valid claim against the estate of the person who caused the death.
In 1910, the 1893 act was amended, the amended act being the same as the 1893 act except that it changed the limit as to damages by providing for a...
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