
    Court of Common Pleas for Fayette County.
    Buckeye Stages et al. v. Charlotte E. Townsend et al.
    Decided May 17, 1930.
    
      Conn & Benoy, for plaintiffs.
    
      Black, McCuskey, Ruff & Sowers, and Sandies & Ulrey, for defendant.
   Rankin, J.

The plaintiffs in the above action filed their petition against the defendant to recover the sum of $5,591.49, for damages alleged to have been suffered due to the negligence of the defendant’s intestate. The petition alleges that on the 2nd day of October, 1928, a motor bus belonging to Buckeye Stages, Inc., was being operated upon a public highway in this county, and that at the same time the decedent, Justin M. Townsend, negligently operated his Studebaker automobile and collided with said motor bus; that the damages to the bus amounted to $8,791.49 and that the value of the use of the bus during the time it was being repaired was $1,800; that the plaintiff, the Importers and Exporters Insurance Company, had previously issued a policy of insurance to the plaintiff, Buckeye Stages, Inc., by which it was required to and did pay to Buckeye Stages, Inc., the sum of $3,541.49.

.The defendant has filed an answer and amended cross-petition setting forth two causes of action against Buckeye Stages, Inc., as follows:

1. For $600 damages to said Studebaker automobile which defendant claims resulted from the negligent operation of said bus by the plaintiff, Buckeye' Stages, Inc., having reference to the collision mentioned in plaintiffs’ petition.

2. The second cause of action alleges that the said Justin M. Townsend died from injuries which he received in said collision; that said collision was caused solely by the negligence of Buckeye Stages, Inc.; that the estate of said Justin M. Townsend was damaged in the amount of $25,000, which amount is claimed on behalf of a minor son and only heir at law of said decedent.

The plaintiff, the Importers & Exporters Insurance Company has filed a motion to strike from the files the amended cross-petition.

In support of the motion it is claimed, in substance, that there is no liability on the part of the Insurance Company for any of the damages alleged in either of the causes of action set forth in the amended' cross-petition; that Section 11307, General Code, permits the joinder of causes of action only when they “affect all the parties to the action”; that Section 11317, General Code, confers no authority to file such a cross-petition; and that “in order that a counter claim may be filed there must be shown to exist mutuality in demands between all the parties to the action.”

Referring again to the petition we find this allegation:

“The plaintiffs have been damaged as the direct and proximate result of the negligence of said Justin M. Townsend, deceased, as above set forth, in’ the sum of $5,~ 591.49.”

The prayer of the petition is for judgment against the defendant in a lump sum for the above amount — which includes the respective claims ’of both plaintiffs. In other words the plaintiffs’ theory of the case, as shown by the petition, is that there is one claim against one defendant. Immediately after the collision in question Buckeye Stages, Inc., had a right to assert its claim against, the driver of the Studebaker automobile for the damages suffered by it. That was then an exclusive right to Buckeye Stages, Inc. Upon payment of a portion of this damage by the insurance company, the latter became subrogated, to the extent of its payment, to the right of Buckeye Stages, Inc. This is the theory of the plaintiffs in this case, and they base their right to join the Insurance Company as one of the plaintiffs upon the doctrine of subrogation.

“Subrogation in its broadest sense is the substitution of one person in the place of another with reference to a lawful claim or right, and it is frequently referred to as the doctrine of substitution.” 25 R. C. L., 1311.
“A subrogee is, generally speaking, placed in the precise position of the one to whose rights he is subrogated. It follows from the very principles of the doctrine of subrogation that one cannot thereby succeed to or acquire any claim or right which the person for whom he is substituted did not have, the extent of his remedies and the measure of his rights being controlled by those possessed by the creditor, and those rights, claims, and securities to which he succeeds are taken subject to the limitations, burdens and disqualifications incident to them in the hands of his predecessor. Beyond this he has no right and no valid claim for protection.” 25 R. C. L., 1377-38.

While we think that the Insurance Company is properly joined as plaintiff in the instant case, still, it has been held:

“The defense that the defendant in error was compensated for his loss by a theft insurance company does not, in our opinion, avail plaintiff in error, for the reason that the same is a matter entirely between the insurance company which paid the loss and the defendant in error himself. The insurance company, if it chooses, may claim subrogation to the benefit of the judgment which the defendant in error obtained in this case, but the payment of the claim by the insurance company does not inure to the benefit of the plaintiff in error.” Dietrich v. Peters, 28 Ch. App., 427, 433.

We are clearly of the opinion that the defendant has a right to set up by way of cross-petition any claim or demand which could have been .set up against Buckeye Stages, Inc., had it been the sole plaintiff,, and that the presence in this case of the Insurance Company in no way affects that right.

For this reason we think the motion should be overruled.

Buckeye Stages, Inc., filed a demurrer to,the.cross-petition claiming:

1. That several causes .of action'are improperly .joined.

2. That separate causes of action.against several.plaintiffs are improperly joined.

3. That the amended cross-petition does not state facts which show a cause of action.

Counsel upon both sides, in submitting this demurrer, have treated the same as though the grounds thereof w.ere prescribed by statute. Causes of‘demurrer to petition .are found in Section 11309, General Code, and the demurrer in this case would appear to have been drawn under the above section.

Grounds of demurrer to an answer and cross-petition are found in Sections 11323 and 11324, General Code, the ’grounds set forth in the latter section being:

“1. That the court has no jurisdiction of the subject thereof;
2. That the defendant has not legal capacity to recover upon it;
3. That there is another action- pending between the same parties for the same cause;
4. That the facts stated do not constitute a counterclaim ;
5. That the facts stated do not constitute a set-off;
6. That the counter-claim or set-off does not state facts which entitle the defendant to the relief demanded.”

In the case of Williams v. Ederer, 43 C. C., 172, it was sought to have applied to a counter-claim a provision of the statutes relative to petitions and the court, in t-he opinion, say;

“Other provisions of law take care of the latter case and the statutes are so specific on the subject of demurrers that no effort should be made to extend them by implication to take in cases not thus specifically provided for.”

As to the third ground set forth in the demurrer we think that it should be overruled for the reason that the cross-petition clearly states two good causes of action. Were the second ground allowed by statute we think it not well taken for substantially the same reasons given above in passing upon the motion.

It is our opinion that objections to a counter-claim, by way of demurrer, must be upon one or more of the grounds mentioned in Sections 11323 or 11324, General Code. Taking this view we decide that the first branch of the demurrer is not well taken.

Sections 11314 to 11317, General Code, both inclusive, provide what the answer must contain and what a- defendant may plead by way of counter-claim and set-off.

A counter-claim is defined in Section 11317, General Code, as follows:

“A counter-claim is a cause of action existing in favor of a defendant against a plaintiff or another defendant, or both, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.”

Section 11315, General Code, provides in part:

“The defendant may set forth in his answer as many grounds of defense, counter-claim and set-off as he may have * *

We htvve had no difficulty in concluding that the first cause of action in the cross-petition is a proper subject of counter-claim. Whether the same conclusion should be reached as to the second cause of action is not so easy to decide.

In submitting this question counsel have treated the same as one involving the right to join a claim due to the estate of the decedent with one asserted to recover for the benefit of the next of kin designated by statute, or in other words a claim under the so-called death statute.

This question is absolutely new in this state so far as we have been advised or been able to ascertain. In our examination we find that in the case of the Welston Iron Furnace Company v. Rinehart, Admr., 108 Ohio St., 117, the action was brought by the administrator of the decedent for injuries sustained by the decedent in her life time, and a second cause of action was set forth in the same petition asking damages for the wrongful death. We believe the question here presented was not material to the issues in that case.

It is stated in Bates Pleading and Practice, at page 1474:

“As plaintiff recovers for the benefit of the next of kin, he cannot join a claim for damages for which the recovery is in a different right caused by the same wrong.”

Under the subject of “Joinder of Causes- of Action” in 1 R. C. L., 366, it is said:

“Causes of action in tort which have been held properly joined in one action include * * * claims for the benefit of the widow and next of kin of one killed by another’s wrongful act, and for the benefit of his estate. Tillar v. Reynolds, 96 Ark., 358, 131 S. W., 969, 30 L. R. A. (N. S.), 1043. * * * Causes of action in tort which have been held not properly joined in one action include * * * cause of action to recover damages for the suffering which one underwent before death because of another’s negligence, and for the death itself. Luns’ Admr. v. Taylor Coal Co., 112 Ky., 845, 66 S. W., 1044, 57 L. R. A., 447; Hendricks, Admr., v. American Express Co., 138 Ky., 704, 128 S. W., 1089, 38 L. R. A. (N. S.), 867.”

We think an examination of the cases cited in Bates will hardly support the proposition therein announced. It might be said of the first proposition quoted above from R. C. L. that the Arkansas practice act is more liberal' than that of Ohio, and that the second proposition therein announced is not authority here, for the reason that the substantive law of Kentucky differs from that of Ohio.

In practically all of the states, statutes, following more or less closely Lord Campbell’s Act, have been passed giving- a right of action for wrongful death. In some of the states the right is given to the personal representative to bring the action for the use of the estate; in others for the use of specified persons, ordinarily the next of kin. In some states the law is that the survivor action and the action for unlawful death cannot both be maintained, that there must be an election as between the two. In other states it is held that where death occurs by reason of an unlawful act the only remedy is under the death statute and that there can be no survivor action. In some jurisdictions the right is given to the next of kin to maintain the action under the death statute in their own names.

In the case of Randolph’s Admr., v. Snyder (Ky.), 129 S. W., 562, it was said in the opinion on page 563:

“While the administrator may recover for the pain and suffering of the intestate caused by the negligence of the defendant, he cannot recover for both, and may be required to elect -which he will sue for.”

Thus we see that the Kentucky law differs from that of Ohio. Coal Co. v. Robinette, Admr., 120 Ohio St., 110.

In. the case of Hurst v. Detroit City Ry. (Mich., 1891), 48 N. W., 44, it was held:

“How. St. Mich. Sec. 8314, giving to personal representatives a right of action for negligently causing the death of their decedent, and Pub. Act. Mich., 1885, No. 113, giving them a right of action for negligent injuries to the person of their decedent, provide distinct grounds of recovery, which cannot be joined in one action.”

But in.Michigan it would appear that:

“Rights of action under Michigan ‘survival act,’ where the person injured survives the injury for an appreciable time, and under the ‘death act,’ where death is instantaneous,.-are separate and distinct, and may not exist at the same, time.”

In the case of Bennett, etc., v. Spartangurg Ry., etc. (S. C.), 81 S. E., 189, it was held that two such causes could not be joined. On page 189 the court says ;

“The first subdivision of that section permits the joinder of several causes of action .in the same complaint, where they arise out of the same transaction. Unquestionably both of these causes of action arose out of the same transaction, the same accident and injury. But the last paragraph of that section further provides that the causes of action so united, except in actions for foreclosure of mortgages, must affect all the parties to the action. In this respect, these two causes of action fall short of the statutory requirement.”

In the case of St. Louis S. W. Ry. Co. v. Hengst et al. (Tex., 1904), 81 S. W., 832, it was held:

“Prior to his death, decedent sued defendant for personal injuries caused by its negligence. After his death, pending the action, his children filed an amended petition claiming damages for his death, or, in the alternative, in the event his death was not the result of the injuries, for .a recovery on the action as originally brought. Held, that though the causes of action were, in a sense, distinct, the children were entitled to join them in one suit.”

A very exhaustive opinion upon this question will be found in the. case of Hindmarsh v. Sulpno Saline Bath Co., 187 N. W., 806; 108 Neb., 168. In that case the court held that the personal representative was entitled to recover for the widow and next of kin in the statutory action for wrongful death, and that the personal representative could join in the same action a claim for damages suffered by the decedent during his life time. On page 809 the court say:

“These two actions may be pursued separately in different suits, each being confined to its own specific limit of recovery, or they may be joined in one action and separate verdicts returned.”

In that case the court cited and followed the Van Alstine case, 77 Ohio St., 396.

We also call attention to the following cases in which it was held that the two actions are joinable: Nemeck, Admr., v. Filer & Co., 126 Wisc., page 71; Illinois Central Railroad Co. v. Drudup, 63 Miss., 291; Callison v. Brake, 129 Fed., 196.

Whether or not these two actions may be joined by a plaintiff we do not think it necessary to decide. The question for determination in this case is whether the two causes .of action may be set up by way of counter-claim by the defendant. We are of opinion that the statutes allowing the filing of counter-claims is sufficiently broad to permit the defendant in this action to set forth both causes of action as has been done.

The transaction set forth in the petition as the foundation of the plaintiffs’ claim involves the relative duty as to care on the part of Buckeye Stages, Inc., and the decedent. The subject of the plaintiffs’ action involves the care of both drivers of the vehicles in question.

Commenting upon Section 11317, General Code, the court in the case of Price v. Furniture Co., 20 Ohio App., 464, at page 467 say:

“It is well not to attempt to define the meaning of the language employed in the statute, for it has purposely been made comprehensive in its terms and general in its expression. The authorities say that it should be given a liberal construction to avoid multiplicity of suits, but advise against the invention of a rule to fit all cases that may arise thereunder in the future.”

The survivor statute, under which the first cause of action may be maintained, is Section 11235, General Code.

The right of action for damages for wrongful death is given by Section 10770, General Code. Section 10772, General Code, provides the persons for whose benefit the action shall be brought and that “It must be broug’ht in the name of the personal representative of the deceased person.” Also that “such personal representative * * * with the consent of the court making the appointment, may, at any time, before or after the commencement of the suit, settle with the defendant, the amount to be paid.” Also that “the amount received by settlement or otherwise, shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making the appointment,” etc.

It is well settled that where injuries are wrongfully inflicted the injured party has a right of action against the wrong-doer to recover such damages as he may have sustained — including, as a part of such damages, any decrease in earning capacity, and in that particular the jury are warranted in taking into account the shortening of the party’s life, in case the evidence warrants. In case the injured party dies before final determination of such an action the right to take into account any prospective earnings the deceased might have received is limited to the period up to the time of such death. To that extent we might say that the death statute comes in to begin where the survivor action leaves off. The same personal representative is authorized to maintain two actions, instead of one, growing out of the same wrongful act.

Construing the survivor statute and the death statute together, in the light of our statutes allowing the filing of counter-claims, we cannot bring ourselves to the conclusion that it was the intention of the Legislature to so far differentiate the two causes of action that they cannot both be set up in the same cross-petition.

It has been said that the personal representative in the death action is merely a nominal party — a mere trustee of the fund for the benefit of the beneficiaries. To a certain extent that is true, but he, nevertheless, is the one designated by law to maintain the action. Furthermore that statute grants to him the exclusive right to settle with the wrongdoer, of course subject to the approval of the court of his appointment. The money is to be accounted for in the Probate Court substantially in the same manner as the amount recovered in the survivor action, with the exception that in the last case the same is subject to the payment of claims against the estate. U. S. Fidelity & Guaranty Co. v. Decker, Admr., (decided April 23, 1930), 122 Ohio St., page 285.

The purpose of our code is to avoid multiplicity of suits and we believe the view we take of this matter conforms to that purpose. Under this view we believe the ends of justice will be subserved and the rights of all parties fully-protected and determined in one action, thus eliminating the necessity of two separate suits in which substantially the same evidence would be offered.

The question has . been asked: What form of verdict can be given in such a case? We feel that our statutes allowing special verdicts will amply take care of this situation.

. Taking these views, the motion and demurrer will be overruled.  