
    Phillips, Admx., v. The Community Traction Co.
    (Decided September 14, 1933.)
    
      
      Mr. Edward P. Buckemnyer, for plaintiff in error.
    
      Messrs. Tracy, Chapman & Welles, for defendant in error.
   Richards, J.

Ethel M. Phillips, as administratrix of the estate of Mary C. Jones, deceased, commenced an action in the court of common pleas of Lucas county on April 26, 1933, against the Community Traction Company for negligence of said company. It is averred in the petition that the negligence was committed on December 19,1931, resulting in injuring said Mary C. Jones, of which injury” she is averred to have died on April 27, 1932. The object of the action was to recover damages under Section 10509-166, General Code (114 Ohio Laws, 438), claimed to have been suffered by her three children as a result of her death.

In addition to a denial, the answer contains two defenses, one of which is that, after the injury, the decedent made a settlement with the Community Traction Company, and fully and completely discharged it from any and all claims and causes of action sustained by reason of the injury alleged in the petition. The other defense is to the effect that Angus Jones was the husband of the decedent, and survived her, and that on February 25, 1932, for a valuable consideration, he released and discharged the company from all claims and causes of action of every kind arising out of said accident. These two special defenses were met in the common pleas court by demurrer, and that court, finding that they constituted a complete bar to the cause of action set forth in the petition, held that the demurrer should be overruled. Thereupon, the plaintiff not desiring to plead further, a final judgment was rendered for the defendant dismissing the action.

The only question presented by this record is whether the releases, purporting to fully and completely discharge the Community Traction Company from all liability, are a bar to an action instituted by the administratrix to recover damages for pecuniary injury suffered by the children of the decedent because of her death resulting from said injuries.

During the lifetime of Mary C. Jones, the only cause of action existing in her was the one held by her entitling her to recover damages for the injuries she suffered upon establishing the facts justifying such recovery. That was the only cause of action which she could settle. Upon her death, resulting from the injuries, another cause of action arose in favor of her administratrix and for the benefit of her next of kin. This cause of action was one over which the deceased never had any control. There were, therefore, two successive and independent causes of action, and, while this is not the rule in all of the states, it is one which has long been applied in Ohio, and the Supreme Court has often so construed the statute. Mahoning Valley Ry. Co. v. Van Alstine, Admr., 77 Ohio St., 395, 83 N. E., 601, 14 L. R. A. (N. S.), 893; May Coal Co. v. Robinette, Admr., 120 Ohio St., 110, 165 N. E., 576, 64 A. L. R., 441; Maguire, Admx., v. Cincinnati Traction Co., 23 C. D., 24, 14 C. C. (N. S..), 431, affirmed without opinion, Cincinnati Traction Co. v. Maguire, Admx., 87 Ohio St., 512, 102 N. E., 1121; Industrial Commission v. Kamrath, 118 Ohio St., 1, 160 N. E., 470; Industrial Commission v. Davis, 126 Ohio St., 593, 186 N. E., 505, decided May 31, 1933.

Of course, the husband had no control over a cause of action which did not yet exist, and which, when it did arise, would be for the benefit of all the next of kin.

As said by the Supreme Court in deciding United States Fidelity & Guaranty Co. v. Decker, Admr., 122 Ohio St., 285, 287, 171 N. E., 333, 68 A. L. R., 1538, in speaking of the proceeds arising from the prosecution of a death claim: “It will readily be conceded that such a fund is not a part of the assets of the estate of the decedent. It is not property, which belonged to the decedent in his lifetime, and the claim did not come into existence until his death. In the nature of things, it could not even be inventoried as a part of the estate. The fund is not subject to administration and distribution like property of which the decedent died seized.” See, also, Wall, Exrx., v. Massachusetts Northeastern St. Ry. Co., 229 Mass., 506, 118 N. E., 864.

From what has been said it is apparent that the trial court erred in overruling the demurrer and dismissing the petition. The judgment is therefore reversed and the cause remanded to the court of common pleas, with directions to sustain the demurrer, and for further proceedings.

Judgment reversed and cause remanded.

Williams and Lloyd, JJ., concur.  