Sloan v. Lorain Coal & Dock Co.

21 Ohio C.C. (n.s.) 335 | Ohio Ct. App. | 1914

Metcalfe, J.; Pollock and Spence, JJ., concurring.

This action is brought by Andrew H. Sloan, as administrator of Everett Sloan, deceased, to recover damages for injuries to said Everett Sloan by reason- of the alleged negligence of the defendant. The action is brought on behalf of the estate, and it is averred in the petition that said Everett Sloan did not leave surviving him any of the persons on whose behalf a recovery could be had under the wrongful-death statute. A demurrer was sustained to the petition in the court of common pleas. The question here is, Does such a cause of action survive the death of the injured person purely for the benefit of the estate by virtue of Section 11235, General Code?

In the cases of Ohio & Pennsylvania Coal Co. v. Smith, Admr., 53 Ohio St., 313, and The Mahoning Valley Ry. Co. v. Van Alstine, Admr., 77 Ohio St., 395, it is held that pending actions for such injuries survive the death of the plaintiff by virtue of Section 11397, General Code, but it is insisted that where the action had not been begun the cause of action would not survive.

Mr. J. M. Rees, for plaintiff in error. Mr. P. P. Lewis, for defendant in error.

Section 11235 provides: “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.”

This section seems to us susceptible of but one construction. For injuries to the person the cause of action shall survive notwithstanding the death of the person entitled or liable thereto. The statute speaks of “causes of action” which survive, not of pending actions, and we think the reasoning in the Van Alstine case, supra, supports the contention in this case.

The judgment of the court of common pleas, in sustaining the demurrer to the petition is reversed.

Judgment reversed.