
    Helman Admr., v. The P., C., C. & St. L. Ry Company.
    ■ Action by administration for damages — From wrongful death— Sections 6134 and 6185, Revised Statutes — Admissions of deceased after injury — Competency of evidence.
    
    In the trial of an action brought by an administrator to recover damages under sections 8134 and 6135, Revised Statutes, it is competent for the defendant to introduce as evidence, what the deceased said while in his right mind after the injury, tending to show that the injury was caused by his own fault, negligence, or carelessness.
    (Decided May 10, 1898.)
    Error to the Circuit Court of Miami county.
    Sherman Weaver, having a wife and three small children, and being a yard brakeman in the employ of the P., C., C. & St. L. Ry. Co., received injuries while in the discharge of his duties as such brakeman, at Bradford Junction, in this state on the 29th day of August, 1894, and died as a result of such injury four days thereafter.
    B. F. Helman was duly appointed administrator of his estate, and sued the railway company for damages under sections 6134, and 6135, Revised Statutes, and in his petition averred that the deceased was properly riding a cut of cars onto a certain track; that his superior was negligent in allowing another cut of cars to follow so closely as to overtake and bump against his cut of cars, thereby throwing him off and causing the cars following to run over him ; that his superior did not use ordinary care in the management of the cuts of cars, and that the brake on the cut of cars following his was defective, so that the brakeman upon that car could not properly check up the cut of cars so as to prevent the two cuts coming together. The administrator also averred that under the laws of Ohio the said Sherman Weaver would have been entitled to recover against said defendant for his injuries so sustained, had death not resulted therefrom.
    The railway company admitted that it was a corporation ; that the deceased had been in its employ; that he was hurt and died at the dates stated, and denied all the other averments of the petition; and averred that the injuries of deceased were caused wholly by his own carelessness and negligence. This was denied by the reply.
    The widow having received and accepted payment out of the relief department, the action proceeded as an action for the recovery of damages sustained by the children only.
    The railway company offered evidence tending to prove that on the second day after the injury, and while Mr. Weaver was in good mental condition, he stated in a conversation then had with a Mr. Heaton, that at the time of the accident he was standing on the foot-board of the car talking to and watching another employe who was riding a cut of cars on a parallel track, and that while so talking and watching the other employe, the cut of cars following him struck his cut and upset him.
    Objection being made to this evidence, the court sustained the objection, and refused to admit the evidence to be introduced to the jury, to which the railway company excepted, and stated to the court what the witness would testify to if permitted to proceed.
    A verdict was returned in favor of the administrator, a motion was made for a new trial upon the ground, among others, that the court erred in ruling out said evidence. The motion was overruled and exceptions taken, and judgment rendered on the verdict.
    The circuit court reversed the judgment upon the sole ground that the court of common pleas erred in rejecting said evidence. Thereupon, the administrator filed his petition in error in this court, seeking to reverse the judgment of the circuit court, and asking that the common pleas be affirmed.
    
      II. II. Williams and M. K. Qantz, for plaintiff in error.
    Under the common law an action for personal injuries could be maintained.
    Prior to the enactment of section 6134, Revised Statutes, the next of kin could not recover damages for causing death by wrongful act.
    
      The provisions of this statute give the next of kin a right to damages whenever the wrongful act, neglect or default (if death had not ensued) would have entitled the party injured to maintain an action and recover damages. This act creates and refers solely to a cause of action.
    The next of kin do not take from the decedent by inheritance, and if the cause of action once exists they cannot be defeated of their statutory rights by his acts.
    His statements, made after the cause of action for personal injuries has arisen, are not admissible because against his interest, for he has no interest and never can have any in an action for causing death by wrongful act.
    His admissions would be admissible in an action brought by him, or in action by a party identified with him in interest, that is, claiming his interest. This action is not one to recover for injuries to the decedent, but to recover damages to certain beneficiaries by the death of decedent. Steel v. Barr, 28 Ohio St., 191.
    The admission of this- character of evidence it seems to us is upon the theory that there is a privity of interest between the next of kin and the deceased. This might be true if the action was under the common law — but this right of action being created by legislation — clearly defining the purpose of the law and limiting and naming the beneficiaries of the act no privity can exist. Hall v. Crain, 2 W. L. M., 593.
    So that it is manifestly improper and error to admit as evidence against the next of kin, statement of a person who did not have and could not have any interest in the cause of action sued on in the case.
    
      Such declarations of the injured personare never admissible as evidence of the cause and manner of the injury unless such declarations are a part of the res gestae. JR. B. v. Mara, 26 Ohio St., 185; B. B. v. Brownell, 47 Mo., 214; Ent. v. JEerg, 60 Mo., 214; Stockman v. B.B., 15 Mo. App., 503; Galveston y. Barbour, 62 Tex., 172; Tiffany on Death by Wrongful Act, section 194; 1 Greenleaf on Evidence, section 102, — 15th ed.; 1 Nisi Prius, 166; 2 Dec. 48. The general current of authorities so hold.
    The offered and rejected evidence purported to be a statement of Weaver made two days after the injury telling how the accident occurred. This was a narrative of a past event and under the authorities not admissible.
    
      Frank Chance and Charles Darlington, for defendant in error.
    In an action, under the statute, by an administrator to recover for the benefit of the next of kin, on the ground of negligence, resulting in death, can the defendant company prove the declarations of the deceased made several days after the accident, as to how it happened, for the purpose of showing that he was chargeable with negligence, directly contributing to the injury? We maintain the affirmative of this proposition, and that in so holding the circuit court did not err. A correct solution of this question we presume depends upon the construction to be given section 6134, Revised Statutes of Ohio. Atkinson, Admr., v. Vil_ lage of Bond I-Iill, 1 Nisi Prius, 166; 2 Dec., 48; Wolf, Admr., v. L. E. <& W. B. Co., 55 Ohio St., 517; Steel v. Kurts, 28 Ohio St., 191.
    If Weaver had lived long enough after his injuries to have prosecuted a suit against the railway company for damages on account thereof to final judgment, such judgment would have been an effectual bar to the right of his personal representative to recover for the benefit of the next of kin, had he subsequently died of his injuries, or if after his injuries he had made claim against the railway company on account thereof, and had adjusted and settled the claim, such settlement would also have barred the personal representative from recovery for the benefit of the next of kin, had he after-wards died from his injuries. Heeht v. 0. & M. By. Go., 132 Ind., 507; Bead'v. Great Eastern By. Go., 3 Q. B. N. S., 555.
    Declarations made by the decedent after injury and against interest were held to be competent against the personal representative in Lehigh Coal Go. v. Jones, 86 Pa. State, 432; Lord v. Pueblo Smelting c& Befining Go., 12 Col., 390; Disbrow v. Toionshi/p of Ulster, 8 Atlantic Reporter, 912; Perigo v. G. B. L c& P. B. B. Go., 55 Iowa State Rep., 326; Lace Admr’%., Appellant, v. <& Grand St. Ferry B. B., 46 N. Y. Superior Court Reports, 448; Meara v. Holbrook et al., 20 Ohio St., 146.
    If Weaver, before .death, had brought an action, then died, the action revived in the name of his personal representative, the declarations of Weaver against his interest would be competent upon the trial of the case. Declarations in such a case do not constitute’ a narration of past events. Greenléaf on Evidence, 1 Vol. Sec. 147. (Redf— ed.); Hollowell & Co. v. Bayless et al., 10 Ohio St., 536.
    Now in the case at bar the action is prosecuted in the name of the personal representative, but not for the benefit of the estate of Weaver, but for another class. As has been said the action is the same, the only difference being that in the event of a recovery the measure of damages differs. Russell v. Sunbury, 37 Ohio St., 373. A ease which fully covers this phase of the question is Stein v. Railroad Company, 10th Philadelphia Reports, 440.
   Burket, J.

The facts showing that the death was caused by wrongful act, neglect or default, and that the act, neglect, or default, was such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, should appear in the petition; and it is not necessaryto aver that if death had not ensued that the deceased would have been entitled to recover damages against the defendant in respect to his injuries so sustained, but such averment can do no harm. The principal questions to be tried are, whether death was caused by wrongful act, neglect or default, and if so, if such act, neglect or default was such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof. If death was not caused by wrongful act, neglect or default, or being’ so caused, the act, neglect, or default, was such as would not have entitled the party injured to recover damages, if living, the action by the administrator must fail. That death was caused by wrongful act, neglect, or default, and that the act, neglect, or default, was such as would have entitled deceased to recover damages in respect thereof, are conditions upon which the action provided for in sections 6134 and 6135, Revised ¡Statutes, are given, and the facts constituting these conditions must be averred in the petition, and established on the trial by competent evidence.

If facts are averred in the petition which would entitle the deceased, if living, to recover damages for the injuries by him sustained, and facts are averred in the answer, or denials therein made, which if true, would prevent a recovery on his part if living, the whole evidence taken together must be of sufficient weight to establish, affirmatively, the facts constituting the conditions upon which the statute gives the right of action, the burden being on the plaintiff. Wolf v. R. R. Co., 55 Ohio St., 517. The defendant, therefore, has the right to introduce any evidence which tends to weaken or disprove the facts necessary to be established to make out the plaintiff’s cause, i. e., the facts constituting the conditions upon which the action is given by the statute.

If death had not ensued, the deceased could not recover damages for his injuries, if it should be established on the trial that his injuries were caused by his own carelessness or negligence; and his statements after the injury and while in his right mind, tending toshow that the injury was caused by his own negligence and carelessness, would be good evidence against him in an action brought in his own behalf during his lifetime. Would it be evidence against his administrator in an action under the statute in behalf of the beneficiaries ?

It is contended by counsel for plaintiff in error, that there is no privity between the deceased and his administrator and beneficiaries, and that the action by the administrator is a new an>d independent action, given by the statute, not connected with, nor dependent upon the right of action of the deceased. This contention is not tenable.

The statute must be construed in connection with the common law as it existed at and before its passage. While at common law the party injured by the negligence of another had a right of action against such party for damages, such right of action does not survive, but abates at his death. The effect of the statute is to pick up this abated right of action of the deceased, and permit it to be prosecuted by the administrator, for the benefit of the next of kin. It is not a new right of action that is prosecuted by the administrator, but it is the same right of action which the deceased had until his death. Upon the death of the injured party, the right of action by the force of the statute passes by succession to the administrator for the benefit of the next of kin.

This succession more clearly appears when considered with reference to the defendant. By his wrongful act he caused an injury which caused a pecuniary loss to both the injured party and to his next of kin. The right of action to recover damages in respect to such act rests in the injured party alone, so long as he lives and should he be compensated in his lifetime, no action can be maintained by his administrator or next of kin for damages, even though it should be clear that the next of kin sustained a great pecuniary loss by reason of the wrongful act. In such cases the pecuniary loss sustained by the next of kin is deemed compensated by the increase of the estate of the deceased. Should the defendant fail to make compensation to the injured party during his lifetime, the liability to make compensation for the pecuniary injury resulting from the wrongful act, instead of abating as at common law, is by force of the statute kept alive, and the administrator succeeds to the right to bring an action upon such liability to recover damages, in the nature of compensation, for the pecuniary loss sustained by thenext of kin by reason of suchwrong-ful act. The liability of the defendant to the party injured, and the liability over to the administrator for the benefit of the next of kin, is for the same wrongful act, and is the same liability; and such liability does not exist in favor of the injured party and his next of kin at the same time, but in succession. There is no new liability created by the statute upon death of the injured party, but the right of succession in the administrator to recover upon the liability already existing, is created.

So that when viewed from the standpoint of either the administrator, or of the party causing the injury by his wrongful act, there is succession in the right of recovery, which succession is created by force of the statute. And where there is succession in rights, there is privity between the parties. It therefore follows, that the administrator and the beneficiaries stand in privity with the deceased, and that such damages as may be recovered by the administrator, are part and parcel of the damages which the deceased had a right to recover during his'life time. This being so, the administrator in his action in behalf of the beneficiaries, is bound by the acts and words of the deceased. Whatever he did, or said, while in his right mind, tending to show that the injury was caused by his own fault, neglect, or carelessness, is competent evidence against the plaintiff, and in behalf of the defendant.

The evidence offered by the railway companj^ and .rejected by the court, was competent and material, and its rejection was prejudicial. The circuit court was right in reversing the judgment and remanding the cause for a new trial.

Judgment affirmed.  