
    No. 931
    PARAGON REFINING CO. v. HIGBEA et
    Ohio Appeals, 6th Dist., Williams Co.
    Nos. 146; 147.
    Decided Oct. 30, 1925
    1134. SUMMONS—Where service of is invalid, party seeking service not required to wait until such invalid service is quashed before issuing an alias summons.
    480. EVIDENCE—As to health of a beneficiary, subsequent to decedents death, is admissible.
   WILLIAMS, J.

These actions were begun in the William Common Pleas, one by John Higbea as administrator of the estate of Grace Clarke deceased against the Paragon Refining Co., and the Rank Market Co. to recover for the wrongful death of Grace Clarke decedent; and two others by Gertrude Clarke, administratrix de bonis non, of the estate of Lawrence Clarke, deceased, against The Refining Co. and The Market Co. Of the latter two, one was for the wrongful death of the decedent, Lawrence Clarke, and the other for expenses incurred in connection with the care and treatment and death of decedents.

In the Higbea case the jury returned a verdict in favor of the plaintiff against the Refining Co. for $1250; but found in favor of the Market Co-. The other two cases were consolidated and a verdict was rendered in favor of Gertrude Clarke and against the Refining Co. for $8,645.35; and in favor of the Market Co. Judgments were rendered on the verdicts in each case, and error was prosecuted to the Court of Appeals.

The evidence showed that the Refining Co. was a distributor of gasoline and kerosene to retailers and through some mistake delivered to the Market Co. gasoline instead of kerosene as ordered, the latter Company being a dealer in latter but not in the former.

One Virgil Daft was sent by Lawrence Clarke to purchase kerosene and the Market Company caused the can to be filled, believing that what was put into it was kerosene, whereas the evidence tends to show it was gasoline. One morning the decedent, while attempting to build a fire, apparently with gasoline, there oc-cured a terrific explosion which injured Lawrence Clarké and his wife so severely that both of them died within a few'days thereafter.

Summons was issued in these cases and served upon the Market Company in Williams County; and at the same time summons was issued to Lucas County for th Paragon Company and upon it there. ¡Thereafter, and without quashing the service upon the Refining-Company in Lucp County, summons was issued and service made on that Company in Williams County. The claim was made that as the verdicts were in favor of the defendant Market Co., service upon the. Refining Company in a foreign county was invalid; and that service on the same defendant in Williams County was invalid also for the reason that an alias summons can not be issued during the life of the original summons. Therefore it is claimed that there was no valid service whatsoever. The Court of Appeals held:

1. The rule in Ohio is that where the service of an original summons is not valid, the party seeking service is not required to wait until the first service is quashed before issuing an alias summons. 25 OS. 451.

2. There was a valid service of summons upon the Refining Company, for, if the service in Lucas County was invalid, the service in Williams County was valid.

3. In the instant case, the finding of the jury was not a gue.ss or conjecture but was an inference warranted by the evidence, if the jury saw fit to draw it. The Court below did not err in refusing to direct a verdict.

4. It was claimed that the Court erred in permitting the jury to take into consideration the physical condition of the beneficiaries after death of the decedent,- and especially that of Arvilla Clarke.. The limitation of recovery in such cases is the pecuniary loss sustained by the beneficiaries.

5. But “for the purpose of showing that such beneficiaries needed and would likely have received aid from the deceased, the circumstances, age, health and means of support of the beneficiary, if a parent or next of kin of the deceased, as well as the age, health, disposition and thrift of the deceased may be shown.” Ry. Company v. Altemaier, 60 OS. 10.

6. There can be no doubt that under the law as it exists in Ohio today, as shown by the decision in the Altemaier case, that evidence as to the health of a beneficiary, subsequent to the decedent’s death, is admissible in evidence.

7. In the Higbea case it is claimed that the court erred in refusing to give the following-request before argument: “It is negligence as a matter of law to pour cither gasoline or kerosene into a stove in which a fire is burning or in which there are live coals and embers.”

s. It would not be negligence to pour gaso-a fire burning or in which there were live coals line or kerosene into a stove in which there was or embers, 'unless the party doing it knew of such fire or embers or could have known thereof by the exercise of ordinary care. The court did not err in refusing the request.

9. It is further claimed in the Higbea case that the court erred in charging as to contributory negligence, in that it did not submit to the jury the question whether or not the husband and wife were, at the time of the explosion, engaged in a joint enterprise and did not charge that if they were, the negligence of either while carrying on such joint enterprise, would be chargeable to the other.

Attorneys—Denman, Wilson, Miller & Wall, Toledo; H. H. DeMuth, Bryan; and W. H. Shinn, Montpelier, for Refining Co.; Charles E. Scott, Bryan, and Charles A. Thatcher, Toledo, for Higbea et.

. 10. The evidence fails to disclose that Mrs. Clarke was participating in the building of the fire at the time the explosion occurred.

Judgment affirmed.  