Fancher v. Cleveland & Southwestern Traction Co.

3 Ohio N.P. (n.s.) 559, 16 Ohio Dec. 293, 1905 Ohio Misc. LEXIS 126

• Court: Lorain County Court of Common Pleas
• Decided: October 11, 1905
• Status: Published

Opinion

Hayden, J.

There is a matter that has been submitted to me in the case of Alice Fancher v. the Cleveland & Southwestern Traction Company, viz., to require the plaintiff by amendment to- the petition already filed in this- case, or by supplemental petition to set forth: First, when the said Alice Fancher died; second, whether said Alice Fancher died as the result of the injuries alleged to have been received by her in the petition or from some other cause; third, by what court said administratrix was appointed.

This is a case in which it appears that Alice Fancher, the plaintiff in the case, brought an action against the Cleveland & Southwestern Traction Company to recover for injuries which she says she had sustained by reason of some negligence—what it is I do not know, and it does not make any difference—vand that since the .commencement of the action the plaintiff ha§ died, and the action has been revived in the name of the administratrix appointed for the plaintiff. 'This motion is to require, as I have said, that plaintiff, the administratrix, either by" amendment or by supplemental petition, set out when Alice Fancher died, and Whether she died as the result of the injuries alleged to have been received by her in the petition or from some other cause. •

Sidles c6 Sidles and Lee Stroup, for plaintiff. E. G. <& II. G. Johnson and Wilcox, Gollister, Hadden & Parks, for defendant.

Now the action brought by Alice Fancher is one which, if she had not died from the injuries, if the injuries did not cause her death, would survive and which might be revived in the name of the administratrix and proceed to recover for the injuries, if those injuries did not cause her death. If those injuries did cause her death, then I think that action would abate, and the only action that could be prosecuted for the result of those injuries would be an action by the .administratrix appointed upon her estate to recover of the defendant a certain sum not exceeding ten thousand dollars, for the benefit of next of kin.

It is not a new or different cause of action, but it is a new action provided for by the statute. But I do not think that it can proceed if the injuries which she received and for which she sued on in the original petition are the ones which caused her death; so I think it ought to be shown when she died .as stated here, and whether or not she died as the result of the injuries alleged to have been received by her in the* petition or from some other cause. The case in the 58 0. S. is one which I think should govern and control this. I will have to sustain the motion then on the first two grounds.

I do not think it makes any difference whether it is set up by what court the 'administratrix was appointed; but as to the first and second grounds of the motion I will have to sustain it.