287 F. 368 | N.D. Ohio | 1923
The question presented on this demurrer is the effect of the state of war between the United States and Austria-Hungary upon the two-year limitation imposed by the wrongful death statute of Ohio. Gen. Code Ohio, §§ 10772 and 10773 — 1. These sections require an action for wrongful death to be commenced within two years after the date of the death, but, if so commenced or attempted to be commenced within two years, and it fails otherwise than upon the merits, and the two years have expired, a new action may be commenced within a year after the date of such failure.
Plaintiff’s decedent met his death June 28, 1917, while employed by defendant at Akron, Ohio. His beneficiaries were his widow and two infant children, all of whom at the date of his death were, and ever since have been, in Austria-Hungary. No administrator was appointed or qualified until peace was officially made and declared, and this action was not commenced until October 25, 1922. War between the United States and Austria-Hungary was declared December 17, 1917. The President’s proclamation of peace was issued November 17, 1921, but Congress had in the meantime, July 2, 1921, passed a joint resolution (42 Stat. 105) declaring the war at an end. It is immaterial whether the date of that joint resolution or the date of the President’s proclamation shall be taken as the end of the war, because, if plaintiff’s contention is correct, that the war period should be excluded, two years will not in either event have elapsed between the date of death and the commencement of this action.
The authorities need not be reviewed. The general principles are fully and sufficiently set forth in Hanger v. Abbott, 6 Wall. 532, 18 L. Ed. 939. According to the principles of international law, an alien enemy is disabled during the war from seeking redress or communicating with this country; this disability suspends during the war both the right and the remedy; and an exception is, as a result of war, read into all general statutes of limitation to meet the disability created by war. It will be noted that the suspension is not merely of the remedy, but also of the right; that the alien enemy’s debt and other property rights may be confiscated, seized, and impounded during a state of war: that the effect upon his right is the same as if it had been seized or impounded during the war and restored to him at the declaration of peace; and that the ordinary rule that a statute of limitation is suspended only when it pertains to the remedy, and is not a part of the right, has- in this situation no basis upon which to rest.
Plaintiff cites a recent decision of the Supreme Court of Pennsylvania, filed January 3, 1923, in Siplyak v. James C. Davis, Director General, etc., 119 Atl. 745. The conclusion therein is based on sound reasoning, fully supported by authority, and controls the situation here, with one exception. The alien enemy next of kin was permitted to recover under the Workmen’s Compensation Raw the compensation payable for death, notwithstanding the period fixed by the statute of limitations had run. The compensation allowed by Workmen’s Com- . pensation Acts, accruing to the next of kin as a result of death, is in its nature the same as the compensation recoverable under a wrongful death statute, and this was so declared in the opinion. The only difference in the facts is that the compensation was payable direct to
It is also settled that an administrator under the Ohio wrongful death statute is a mere nominal party, without any interest in the case, and that the recovery is to be measured and determined by the pecuniary losses of the next of kin. See Wolf v. Railway, 55 Ohio St. 517, 45 N. E. 708, 36 L. R. A. 812; Railway v. Hottman, 1 Ohio Cir. Ct. R. (N. S.) 17, affirmed 70 Ohio St. 475, 72 N. E. 1154. Nor are the creditors of the estate, or any other person except the next of kin, interested in the distribution of the recovery. Weidner v. Rankin, 26 Ohio St. 522; Steel v. Kurtz, 28 Ohio St. 191. Moreover, the beneficiaries are so much the real parties in interest that negligence of any one of them, directly contributing to the death, bars his right of recovery. Star Fire Clay Co. v. Budno (C. C. A.) 269 Fed. 508. The widow and next of kin are the persons entitled to qualify as administrator. It is true, other persons may be appointed and qualified under certain conditions, particularly a creditor; but an appointment will not be made unless some interested person makes application for letters of administration.
In a wrongful death case, no person is interested in making or causing such application to be made, except some one of the next of kin. In this case, during all the period of the war, such interested persons could not communicate with any one resident in the United States, nor could any one in the United States communicate with them, so that an application might be suggested, or otherwise. Even if an administrator had been appointed prior to the declaration of war, or during the war, the declaration of war prevented the administrator or other persons from communicating with the next of kin in order to procure evidence of dependency perhaps indispensably necessary to the recovery of more than nominal damages. In this situation it seems clear that no different rule can or ought to be applied in a wrongful death case than is applied in other cases involving ordinary commercial transactions. To do so would not be in accord'with sound principles of international comity or international justice.
The demurrer is overruled. An exception may be noted.