author: Price, J.

text:
    Rheinheimer v. The Aetna Life Insurance Company.

      Accident insurance policy — Excepts loss resulting from disease — ■ Death of insured from blood poisoning — Induced by accidental scratch — Not within exception — Special instructions to jury— Sufficient if court gives substance of request.

    1. An accident insurance policy, after providing for idemnity for accidental injuries resulting in disability, loss of time from labor, etc., contains the further stipulation, that “if death results solely from such injuries within ninety days, the said company will pay the principal sum of five thousand dollars to the beneficiary, if living; and in the event of the death of said beneficiary before the death of the insured, to the executors, administrators or assigns of the insured.” The policy contains the further provision, that it. is issued and accepted on certain conditions, one of which is, that “this insurance does not cover in event of accident or death, loss of limb or sight, or disability, resulting wholly or partly, directly or indirectly, from bodily or mental infirmity, or disease in any form, proximate or contributory, as a primary, secondary or final cause of accident, injury or death; * * *.” While said policy was in full force, and the insttred was not afflicted with any known physical or mental infirmity, he unintentionally and accidentally sustained a cut or scratch on the index finger of his left hand from which blood at once issued, through which wound and coincident therewith, it became so infected that blood poisoning was at once introduced into the circulatory system of the insured from the effects of which he died within five daj's of the accidental injury.

      Held: That the death was not within said exception, and the insurance company is liable. Insurance Co. v. Domey, 68 Ohio St., 151, distinguished.
    2. Where proper special instructions to the jury are requested, but not to be given before argument, the court is not required to . give such instructions in their precise terms or language as submitted. It is sufficient if the substance thereof be given in other instructions, or in the general charge.
    (No. 10227
    Decided December 17, 1907.)
    Error to the Circuit Court of Cuyahoga County.

      The plaintiff in error was plaintiff in the court of common pleas in an action against the defendant in error to recover on a policy of insurance. She was the wife of Elias Rheinheimer, the insured, and the beneficiary named in the policy. The petition alleges that: “On the 13th day of November, 1899, at the city of Cleveland * * *, through W. G. Wilson, who was then and there its general and countersigning agent, with authority to receive premiums, accept risks and issue policies, in consideration of the sum of twenty-five dollars then paid to it by the said Elias Rheinheimer, said defendant agreed and promised in case of the death of said Elias Rheinheimer, resulting solely from bodily injuries effected during the term of twelve months from noon of the 13th day of November, 1899, through external, violent and accidental means within ninety days from the date of said injuries, to pay to the said plaintiff the sum of five thousand dollars.
    “Thereafter, in consideration of the further payment of twenty-five dollars to it paid by said Elias Rheinheimer, said defendant continued in full force said policy for twelve months from noon on November 13, 1900, through W. G. Wilson, its agent as aforesaid. On the 30th day of December, 1900, said Elias Rheinheimer accidentally scratched the index finger of his left hand, leaving a visible mark, thereby then and there introducing into his system blood poisoning, which caused his death on the 3d day of January, 1901. Said death did not result wholly or partly, directly or indirectly, from any of the causes excepted in said policy, but wholly and directly from said accidental scratching of said hand.
    “Immediate and due notice in writing of said accidental injury and death, and the proof of death, was forthwith made and delivered to said company and accepted -by it. More than ninety days have elapsed since the receipt by defendant of said proof of death. By reason of the premises there is now due and payable from said defendant to this plaintiff the sum of five thousand dollars, with interest thereon from the 3d day of April, 1901.”
    Plaintiff prayed for judgment in said sum with interest. No copy of the policy was attached to the petition.
    The defendant answered and set up six defenses. The first defense consists of admissions of the execution and delivery, the payment of premiums and terms of the policy, the death and proof thereof as averred in the petition, and denies all other allegations not admitted.
    As a second defense, the answer sets out a copy of the insurance policy, and pleads the third condition of the policy, the part pertinent here being as follows: “nor the result, fatal or otherwise, of voluntary or involuntary taking of poison, contact with poisonous substances, inhaling of any gas or vapor, or of sunstroke or freezing. This insurance does not cover in event of accident or death, loss of limb or sight, or disability, res%ilting wholly or partly, directly or indirectly, from bodily or mental infirmity, or disease in any form, proximate or contributory, as a primary, secondary or final cause of accident, injury, disability or death; nor does it cover death or disability due to hernia, existing prior or subsequent to the issue of .this policy,” etc.
    Having quoted this clause of the policy, the defense further says, the death of the insured was not the result of means or causes covered by said policy, but was caused wholly or partly by a disease, to-wit, blood poisoning.
    The third defense alleges that the death was caused by the voluntary or involuntary contact of said Elias Rheinheimer with poisonous substances.
    The fourth defense avers that, “the insurance policy in terms provided only for injuries or death resulting from bodily injury effected during the term of this insurance, through external, violent and accidental means, and that the death of said Elias Rheinheimer did not result from such means, but resulted from the intentional, wilful and intelligent contact of said Elias Rheinheiiner with poisonous substances and material.”
    The fifth defense is in substance like the second.
    The sixth defense avers, in substance, that the death was due to unnecessarily exposing himself to obvious risk of injury, especially that, well knowing the danger of so. doing, wilfully and persistently handled and came in contact with poisonous substances', when such acts were obviously dangerous and would result in injury, disease or death.
    . The reply denied each and every affirmative allegation of the answer. The case was tried to a jury. The court gave some of the special instructions requested by defendant and refused others. Exceptions were taken to the refusal and to the general charge. Counsel for defendant, before the general .charge to the jury, requested the court to instruct the jury to return a special verdict in writing upon all the issues raised by the pleadings, but defendant’s counsel declined to assist in framing the form of such verdict, and when it was prepared and submitted to the court by counsel for plaintiff, the defendant’s counsel objected to it going to the jury, but offered no form in its place.
    The special verdict returned by the jury is as follows : “We, the jury in the above entitled case, being duly impaneled and sworn do find that plaintiff is the wife of Elias Rheinheimer; that the defendant is a corporation under the laws of' Connecticut; that at the time of all the matters hereinafter mentioned the policy of insurance, a copy of which is annexed hereto, marked ‘A’ and made a part hereof, was outstanding and in force; that due proofs of death were delivered to the defendant and accepted by it. That on the evening of the 30th day of December, A. D. 1900 (the jury are unable to determine the exact hour), said Elias Rheinheinier accidentally and unintentionally scratched his left index finger in locking up the house; upon what he scratched it the jury are unable to say. That this scratch penetrated through the skin to the tissues and blood vessels beneath and left a visible mark; that it drew blood; that at the time of the accident and by the accident germs of staphylococcus pyogenes aureus and of the vibrión septique of Pasteur were introduced into the circulatory system of said Elias Rheinheinier by the lymphatic vessels, setting up an inflammation of the lymphatic vessels of said finger, left hand, left arm and upper left breast, producing an oedema of a malignant nature, that is, an acute and aggravated oedematous condition of the left arm and left breast, producing ultimately the death of the said Elias Rheinheimer. That said accidental scratch was the sole, proximate and immediate cause of the death, of said Elias Rheinheimer which resulted directly and proximately therefrom between ten and twelve o’clock of the morning of the third day of January, A. D. 1901. That the effects of said wound began to manifest themselves ■at about seven o’clock on the evening of the 31st day of December, A. D. 1900, and continued to progressively increase until they finally resulted in his death; and said death did not result from contact with poisonous substances, nor did it result wholly or partly, directly or indirectly from bodily infirmity, or disease in any form, proximate or contributory, as a primary, secondary or final cause of death; nor did it arise from any unnecessary exposure to obvious risk of injury or obvious dang'er. If upon the whole matter, the court shall be of the opinion that the plaintiff has established her cause of action, we then find for the plaintiff and assess her damages at the sum of sixty-two hundred dollars.”
    The defendant excepted to the verdict and to its being received by the court. These were overruled, as was a motion for new trial, and the court rendered judgment on the verdict. The case was taken on error to the circuit court. That court reversed the judgment of the court of common pleas, “for error in overruling the motion of plaintiff in error for judgment in its favor upon the pleadings, there being no other error apparent in the record to the prejudice of the plaintiff in error.” Having so found, the circuit court rendered final judgment dismissing the petition.
    Error is prosecuted in this court to reverse the judgment of the circuit court.

      Messrs. White, Johnson, McCaslin & Cannon, for plaintiff in error.
    Now we are assured by the highest medical authority that if this policy be construed, as did the circuit court construe it, not to cover cases where total or partial disability, loss of hand, foot, sight or death is caused by morbid processes set in action by the injuries, then this policy does not cover any cases except where the loss of hand, foot, sight or' death is coincident, or nearly coincident with, the receipt of the injuries, and that if such be the construction of the policy, it would be impossible to have a case arise for which defendant would be liable.
    All morbid actions, all abnormal actions of tissues, of membranes, of bones, of circulation and organs are denominated disease, and, according to the parts affected, they have different names given to them by pathologists. It usually happens that these results are progressive. An accidental injury will involve one organ. The injured state of this organ will give rise to morbid action on its part, which will involve progressively other and yet other organs or parts of the body until it re-suits in loss of limb, of sight, total disability or death.
    The accidental injury here alleged is not the accidental scratch, but is the accidental introduction into his system of blood poisoning. 'The same substance, whether it was the bolt of the door, or screw head, or edge of the lock, or splinter, which tore its way through the skin and subcutaneous tissue, at the same time deposited in the wound the bacteria or microscopical vegetable organisms which, by their rapid multiplication by separation, produced in the body of Elias Rheinheimer the condition which is popularly called blood poisoning, and from which he died, and which, in more technical language, is described in the passage quoted above from the special verdict.
    In the language of some of the cases we can not see why an introduction of these minute vegetable organisms into the system is not a part of the accidental injury as much as would be the loss of blood by hemorrhage, the rupture of the membrane of the stomach, allowing the escape of the entrails, known as hernia, or any other injury which forms a part of tire injury received.
    If now we examine the authorities, we will find that they sustain the views above expressed, and indeed we have not been able to find any holding adversely. Insurance Co. v. Young, 20 Can. Sup. Ct., 280; Carey v. Insurance Co., 106 N. W. Rep., 1055; Martin v. Accident Assn., 61 Hun, 467; Martin v. Indemnity Co., 151 N. Y., 94, s. c. 71 Hun, 614; Bailey v. Casualty Co., 8 N. Y. App., 127; Hall v. Accident Assn., 86 Wis., 518; Car

      roll et al. v. Fidelity & Casualty Co., 137 Fed. Rep., 1012; Commercial Travelers Assn. v. Smith, 85 Fed. Rep., 401; Insurance Co. v. Melick, 65 Fed. Rep., 178; Accident Assn. v. Barry, 131 U. S., 100; Peck v. Accident Assn., 52 Hun, 255; Fitton v. Insurance Co., 17 C. B. N. S., 122; Accident Assn. v. Alexander, 104 Ga., 709; Insurance Co. v. Murray, 16 Col., 296; Omberg v. Accident Assn., 101 Ky., 303; Lawrence v. Insurance Co., L. R., 7 Q. B., 216; Smith v. Insurance Co., L. R., 5 Exch., 302; Mardorf v. Insurance Co., 1903, L. R., 1 K. B., 584; Insurance Co. v. Dorney, 68 Ohio St., 151; Jiroch v. Insurance Co., 108 N. W. Rep., 728; Insurance Co. v. Rembe et al., 220 Ill., 151.
    ■ Stress is laid a number of times in defendant’s brief upon the fact that die special verdict was drafted by counsel for plaintiff. Defendant requested a special verdict. “The court requested both the plaintiff’s and defendant’s counsel to prepare forms of special verdict setting forth the facts as they respectively claimed they were established by the evidence. Defendant’s counsel declined só to do.”
    The court charged the jury properly upon the subject of the use to be made of the draft form prepared by plaintiff’s counsel. Apparently, defendant thinks that this course was improper. The course pursued by the court has been approved in this state both by the circuit court and by this court. Railway Co. v. St. Bernard, 19 C. C., 299; Gale v. Priddy, 66 Ohio St., 400; 22 Ency. Pl. & Prac., Verdict, 979, et seq.

      Messrs. Foran, Pearson & Powell, for defendant in error.
    The plaintiff in error avers, as the external, violent and accidental means, through which the insured was injured, and which primarily brought the injury within the terms of the policy, a scratch upon the-finger, but does not predicate the liability of the defendant in error upon the mere scratching of the finger, but rather upon a disease, to-wit: blood poisoning, the germs of which, she avers, were introduced into the system of Elias Rheinheimer by and with said scratch. So that it is apparent and admitted by the plaintiff in error that Elias Rheinheimer died of blood poisoning. That blood poisoning is a disease has been decided judicially. - Bacon v. Insurance Co., 123 N. Y., 304; Kasten v. Casualty Co., 40 L. R. A., 651; Martin v. Indemnity Co., 151 N. Y., 94.
    The blood poisoning caused by the activity of these germs may result from their entrance into the system through an external cut, at the time of the cutting, or in some manner after the cutting, but such blood poisoning might be caused by such germs entering through the mucous membrane, and in many cases it.would.be impossible to determine which.
    The insurance company might then well decline to take the risk and might further desire to relieve itself of the burden of inquiring whether the disease was or was not caused by an accident otherwise within its policy.
    The question is whether it did or did not make the terms of this exception such as to exclude it from liability in such cases. By the rules of interpretation some meaning, if reconcilable with the other portions of the policy, is to be given to all the provisions and terms therein. If the words of the exception contained in this policy do not exempt the company from the liability suggested, it would seem almost impossible to frame an exception that would.
    This court has spoken on this question in the case of Insurance Co. v. Dorney, 68 Ohio St., 151; State, ex rel., v. Railway Co., 68 Ohio St., 9.
    Many of the decisions cited by the plaintiff in error discuss the question of the proximate cause of the death or disability sued upon. Many of the policies use the terms “proximate” or “sole cause,” and the courts went upon the maxim “Causa próxima, non remota spectatur,” but the question here is not as to the proximate cause, nor the causa catisans, but whether a condition of disease served to bring about the result; in other words, was the disease a causa sine qua non of the result.
    The plaintiff in error admits that the insured died from disease. The doctor’s testimony is to the same effect. The coroner, by inquest, must have found that to be the fact, and it seems sufficient, under' the wording of the exception, to show that the death was attributable to disease. In any event, supervening as it did, it must have been a secondary cause. 25 Am. & Eng. Ency. Law, 2d Ed., 160.
    If the blood poison was such as arose within the system, there would be no possible claim under the policy, and the purpose of the exception was to exclude such as might result from accidental means within the general proviso of the policy. McGlother v. Accident Co., 89 Fed. Rep., 685.
    The injury suffered by the insured here was not of itself likely to result fatally or even in any great degree harmfully. The cut upon the finger did not cause such wasting or loss of blood as to endanger the safety of the insured, nor can it be said that the blood poisoning was its inevitable concomitant.
    Admitting, for the purpose of argument, that the germs, whose activity resulted in blood poisoning, were introduced into the wound at the time of the wounding, nevertheless they might not have caused blood poisoning, it being very largely a matter of chance, of the physical condition of the insured and of the subsequent care given the wound. It may well be argued that there is no provision in the policy providing for insurance against the accidental incurring of disease. In a sense, every disease is incurred accidentally. Casualty Co. v. Peltier, 51 S. E. Rep., 209; Clark v. Assurance Co., 72 Vt., 458; Carr v. Insurance Co., 75 S. W. Rep., 180.
   Price, J.

The record shows that the circuit court reversed the judgment of the court of common pleas for “error in overruling motion of plaintiff in error for judgment in its favor upon the pleadings, there being no other error apparent in the record to the prejudice of the plaintiff in error. And proceeding to render the judgment the court of common pleas should have rendered, it is considered thatrthe petition and proceeding brought by the said iEmma Rheinheimer, the defendant in error, be and the same is dismissed.” A judgment for costs was rendered against her. A most careful search of the record discloses no such motion, and it appears from the briefs of opposing counsel that no motion was ever made in the court of common pleas for judgment on the pleadings, and there is no entry found in the record that the latter court ever heard or passed on such a motion.

Speaking on the subject, counsel for plaintiff in error say in their brief: “No motion for judgment on the pleadings was made, but what is substantially equivalent, defendant in error objected to any testimony being given by the plaintiff in error.” We think the learned counsel concede entirely too much, for the right to judgment on the pleadings must arise from a consideration of all the pleadings, it not being infrequent that the averments of an answer may help out a defective petition. And so may a reply contain facts which will aid a weak answer. To justify a judgment on the pleadings, it must be found that taking all their averments as they stand, they present simply a question of law. The objection to the introduction of any evidence by the plaintiff may be based on the ground that the petition does not state a cause of action, and in this respect differs widely from a motion for judgment on the pleadings. Commenting on the above condition of the record before us, counsel for defendant in error, in their brief, copy the same entry of the circuit court, and proceed at once to say that, “in' the trial court a number of exceptions were taken by the defendant in error to the rulings of the court upon the admission and exclusion of evidence, and to the charge of the court. In the exercise of caution the defendant in error, therefore, filed in this court a cross-petition in error and a record containing a complete record of the proceedings in this case. The cross-petition in error asked this court to consider the alleged errors of the trial court, if this court should be of opinion that the circuit court, erred in giving judgment upon the pleadings for defendant in error.”

We regard it as a fair inference from this statement, that counsel making it as the representative of the insurance company, do not now claim that the trial- court ever had before it, or passed upon a motion for judgment on the pleadings. Nor did the petition in error filed in the circuit court assign as error any ruling on such motion. It follows, therefore, that the circuit court'erred in reversing the judgment of the court of common pleas on the only ground stated in its judgment entry.

But counsel for the defendant in error say they filed a cross-petition in error, pointing out other grounds of error, for which the circuit court should have reversed the judgment of the common pleas. That was an unnecessary proceeding, as often ruled by this court, and at an early stage of the case in this court, and on motion of the plaintiff in error, the cross-petition in error was stricken from the files. It has long been a rule of practice here, that if there are other errors in the rec’ord brought here from the circuit court, for which that court should have reversed, they may be .pointed out, and this court is not necessarily confined to those found by that court.

Having cleared the way for a proper review of what is before us, we find that in the beginning of the trial the insurance company “objected to the introduction of any evidence by the plaintiff under the petition.” This objection was overruled and defendant excepted. This ruling was assigned for error in the circuit court without avail. Should the circuit court have held that ruling to be error?

The statement of this case contains very liberal quotations from the petition, and, in fact, its vital averments are set out, omitting the formal statements of the capacity in which the plaintiff sues and the- defendant is being sued. The plaintiff did not attach to her petition a copy of the insurance policy, but did set out the obligatory part thereof on which she founded her claim, such as the promises contained in the policy; the payment and acceptance of the two premiums. Enough is alleged to show that the insurance was alive and otherwise valid at the death of her husband; that through external and violent means the deceased sustained an injury which caused his death a short time thereafter; and going more into detail, it was alleged that on the 30th day of December, 1900, the deceased accidentally scratched the index finger of his left hand, leaving a visible mark, thereby then and there introducing into his system blood poisoning, which caused his death on the 3d day of January, 1901. Then, taking care to meet an anticipated question as to the cause of death, it is alleged that, “said death did not result ‘wholly or partly, directly or indirectly, from any of the causes excepted in said policy, but wholly and directly from said accidental scratching of said hand.” There was no motion to make the averments' of the petition definite and certain as to the condition of the insured between the sustaining what appeared to be a very slight injury and the hour of his death, and we can not assume, while passing on the sufficiency of the petition, that some or all of its averments are shaded in doubt, or are partly if not altogether untrue. It is said that the scratch of the finger was accidental; that it left a visible mark as such injury, then and there introducing blood poisoning into the system. The introducing of the poison is charged to have been simultaneous or next in time to the injury. The inoculating of the poison was the first sequence of the accident. The accidental injury is alleged to have been the sole and proximate cause of the death. We are not able to say, as a matter of law, that the facts so averred were so far improbable or impossible that we should ignore the positive terms of the pleading. Moreover, the positive averment as to the cause of death is followed by a denial that jt resulted wholly or partly, directly or indirectly, from any causes excepted in the policy.

We are of opinion that the petition states a cause of action under which the plaintiff was entitled to introduce her competent evidence.

There was some controversy over the introduction of testimony, but it did not reach a serious stage. The first, and perhaps the most important question made by the plaintiff in error, relates to some statements elicited from Marcus Feder, who was a son-in-law of deceased, and then resided in part of the same house. After testifying that he was at home that evening (December 30), he said it was about nine o’clock, and he saw Mr. Rheinheimer standing under the chandelier in his sitting room squéezing out blood from the finger. He says there was a tear of the finger where the blood came out; the extent of the tear being about a quarter of an inch. The witness' was then asked: “Now, what, if anything', did he say to you when you saw him squeezing the blood out of his finger under the chandelier ?” Counsel for defendant company objected, and after full argument, the court overruled the objection, and exception was reserved. The witness answered: “ T hurt my finger locking up the door,’ ” or “ 'locking up the house.’ ” The witness then stated that he went into the bath or toilet room and procured a clean linen rag and helped- him dress the wound. The spirit of the objection to the question and answer is, that the statement of Rheinheimer as to how he sustained the injury was not part of the res gestae; on the contrary, it was hearsay in this case.

The courts have found it difficult to establish a satisfactor}'- line between what statements are considered part of the res gestae and what are not. The decisions are not in harmony on the subject, some courts holding to - a more liberal rule than that recognized by former adjudications of this court, and if it were necessary to go into the subject anew in this case, the discussion might be of value; but if we take it for granted here (but we do not decide) that the statement was not a part of the res gestae as defined by óur former rulings, it does not follow that the error of its admission is so far prejudicial “that the judgment of the trial court should be reversed. This is true as to the present question, because, aside from said statement, there is much uncontradicted evidence as to the nature and probable cause of the injury to the finger, from which the deadly inflammation proceeded. Early in the record it appears that Mrs. Addie Feder, wife of Marcus Feder, was a witness. She is a daughter of Mr. Rheinheimer, deceased, and resided with her husband in a part of the house. She testified that Dr. Peskind was called to see her father on New Year’s morning, and she was asked: “When, if at any time, did you see any cut or hurt or anything of that kind on his hand * * *?” She apswered: “There was a black mark traced down through the finger, and I saw that.” Other answers were made concerning the description of the streak on the arm and finger, and she said: “It was quite large and led down in a streak from here (indicating). The doctor drew my attention to it, and I saw it leading from the finger up to that discolored spot.” Again, she was asked: “Where was this scratch or whatever it may be that you refer to, on the finger?” Ans. “It was on the forefinger. * * * As near as I can remember, it started from somewhere the middle of the finger,” etc. Again she says: “It was rather a deep scratch. Oh, I should judge from a quarter of an inch perhaps, or a little more than that.”

In the testimony of Dr. Peskind, the first physician called, and on the second day after the alleged injury, he states concerning the injury to the finger: “There was a small scooped out wound on the second or third phalange — the second or third section of the finger of the right hand — a red streak, and that ran to the back of his hand and on the inside running up to his armpit. These infected streaks always indicate- poisons being carried from the surface into the general circulation.” Marcus Feder testified that his father-in-law was locking' up the house just preceding the act of standing under the chandelier and squeezing the blood from the torn finger.

In another part of his testimony Dr. Peskind states: “I found the finger had a scooped out wound about a quarter or three-eights of an inch long. The wound looked scooped out, slightly excoriated and a little water on the surface * *

The wound was fresh. It had not been seen before the deceased stood under the chandelier and squeezed the blood from it. He had just been engaged-in locking up the house. In the presence of all of these facts it was immaterial that he said that he hurt his finger, “locking up the door, or locking up the house.” Without such statement there was evidence strongly tending to show that he received the cut or scratch at the time and in the manner claimed, and there is no evidence to the contrary. There was no contest of these facts in the evidence, and the case does not rest on the declaration of the deceased. It is not suspected that the injury was self-inflicted. Some other questions arose during the introduction of the evidence, but none, of sufficient importance to demand special mention..

The defendant below set out in its answer the clause of the policy which limits its liability, and relying on that clause as a defense to the action, introduced evidence tending to prove that blood poisoning caused the death, and not the injury to the finger, and other evidence tending to show that the policy does not cover the death or loss made the basis of the action. That clause reads: “This insurance does not cover in event of accident or death, loss of limb or sight, or disability resulting wholly or partly, directly or indirectly, from bodily or mental infirmity, or disease in any form, proximate or contributory, as a primary, secondary, or final cause of accident, injury, disease or death; nor does it cover death or disability due to hernia existing prior or subsequent to the issue of this policy,” etc.

Believing that the evidence brought the case within the terms of the above exception, the insurance company requested twenty-seven instructions, the first of which was to find a verdict* for the defendant. This was not given. Some of the others were given and others refused. As the record stands, it was not asked that these of any of them should be given before argument, and if the substance of the proper instructions is contained in the general charge, there is no ground for complaint. But counsel specially allege error in refusing to give the 7th, 9th, nth, 17th and 18th requests. As to two of these requests, it seems they might be refused because the facts in the case did not call for or permit of such rules. And when we look to requests 2, 3, 4, 5_ and 6, which were given, and to the general charge, we conclude that the law was submitted to the jury in such form ánd language that the issues could be clearly understood by the jury. In the 2d request the jury were told' that a preponderance of the evidence must show “that the decedent, Elias Rheinheimer, came to his death from bodily injuries effected through external, violent and accidental means which, independently of all other causes, produced the death of the said Elias Rheinheimer,” etc. In the 3d the jury was instructed that they must be convinced by a preponderance of the evidence “that the death of Elias Rheinheimer resulted solely from bodily injuries effected through external, violent and accidental means on or about the 30th day of December, 1900, and that the death of the said Elias Rheinheimer resulted solely from such bodily injuries within ninety days of the said 30th day of December, 1900.” In the 4th 'instruction requested and given the jury was told that “if the evidence in the case convinces you that the death of Elias Rheinheimer was due to disease of any kind, the plaintiff can not recover in this case.” And in the 5th the jury was told that in order for her to recover, “the plaintiff must show by a preponderance of the evidence that the death of Elias Rheinheimer was due to and effected through external, violent and accidental means, which, independently of all other causes, caused the death of the said Elias Rheinheimer, and so caused the death * * * solely from such injuries within ninety days,” etc. This is not all, for in the 6th instruction given, the court said: “Unless the plaintiff has shown by a preponderance of the evidence in this case that the death of Elias Rheinheimer, the decedent, was the direct, proximate result of external, violent and accidental means, there can be no recovery,” etc.

Beyond doubt, these instructions cover the terms of all the other proper requests which were not given in terms, and they lack only the addition of the supposed saving words “wholly, partly, directly or indirectly from bodily infirmity or disease in any form which was a proximate, contributory, or a secondary, or a final cause of such accident and injury.” These words are literally taken from the clause of the policy quoted, and we know of no rule that requires the- court to charge a *proposition as law, which is contained in the technical language of the contract. The court, in charges given, had stripped from the real issue some of these qualifying words which to the jury might seem mysterious, and which might even confound them, and gave their purport and meaning in clear and simple terms. For -if the accident was the sole cause of death, and it was so caused independently of- any other cause, then it did not result partly from any other cause; and if the accident was the sole and proximate cause of death, then it did not result, directly or indirectly, from any other cause. And if the accident was the sole and proximate cause, it was the primary, and not the secondary or contributory cause. It seems to us the above special instructions given at the defendant’s request, and the general charge, covered the terms of the exception in the policy, and the court sufficiently and correctly construed the policy. The qualifying words, above noted, were contained, in whole or in part, in several of the rejected instructions, and the same comment applies to them. We will further refer to the general charge and the rejected instructions when we come to consider the special- verdict returned by the jury.

On the whole case, as well as to the sufficiency of the- petition, counsel have cited many authorities pro and con. We have not space to give our views of them separately. They will appear in the official report of this case in their proper order.

But the insurance company cite and seem to rely on Aetna Life Ins. Co. v. Dorney, 68 Ohio St., 151, as controlling the case at bar. The facts of the cases are so widely different that we are unable to make the application attempted by counsel. The vital conditions presented by one case are the reverse of those presented in the other. In the Dorney case, supra, there was no visible mark of injury. At some period prior to his death an ulcer formed in his stomach which gradually made a hole through it. Nature had patched by growing a fold of the omentum or covering of the bowels over the opening and closing it as by a patch. By the strain, jar, or wrench which Dorney sustained in helping to carry a stone, the patch was torn off, so that the contents of the stomach escaped into the abdomen and death resulted shortly thereafter. This condition of the stomach was set out in the petition and was a conceded fact of the case. There was a well-defined pre-existing physical infirmity in the stomach, only partly healed by nature, but its work gave way with a slight jolt of the body and death ensued — not from the jolt or strain but from the ruptured stomach. The perforated stomach was the pre-disposing cause of death and the motion or jar in carrying the stone, only the incident, the transpiring of .which precipitated the results of the defective organ.

In the case at bar it appears that Rheinheimer, prior to the injury to the finger, enjoyed fairly good health, and for a man of his years was active in business. It is not shown that he had any organic disease, or any other kind of disease. The scratch of the finger preceded all, as the physical injury, and its mark was visible. Its relation, whether a proximate, direct and sole cause of the death, became a question for the jury. We still approve of the doctrine of the Dorney case, but it is not in conflict with our conclusions in this investigation.

Complaint is made of the special verdict, as to the drafting and submitting of the same to the jury, and also of the court receiving the verdict and rendering judgment upon it. This verdict appears in our statement of the case. It exhibits an ability and conciseness not common to the ordinary petit juror. How did it come into existence, and into court? On page 244 of printed record, it appears that counsel for the insurance company asked the court to direct the jury to return a special verdict. The request is as follows: “We ask the court to instruct the jury to return a special verdict in writing in this case, upon all the issues raised by the pleadings.” The court: “Under what provisions of the law do you make that request?” Answer: “Section 5201.” The jury was then charged, at the close of which the subject of the special verdict was taken up. The court suggested that it would aid the jury if opposing counsel would draft an outline of such verdict. Counsel for the plaintiff submitted to the court a form" of special verdict drawn by them, and requested the court to submit it to the jury, to be filled out in returning its verdict, to conform to the request of counsel for the defendant. Counsel for the defendant then and there objected to the form of the verdict as prepared by the counsel for the plaintiff going to the jury room. This objection was overruled, but counsel for defendant declined to prepare, or assist in preparing any form or outline for a special verdict. The court said to the jury: “The defendant in this case has requested the court to direct you to give a special verdict in writing upon all the issues in this case, and it is the duty of the court to so instruct you, and I do now instruct you to return a special verdict in writing upon all the issues in this case, and I have defined to you, gentlemen of the jury, at length in my general charge, what, the issues in this case are, and I will not endeavor now to make a repetition of the charge. It will 'be your duty to select your foreman in the usual manner and to reduce to writing your finding upon all the. issues in. this case,” etc. But the court does not stop here, but proceeds to say: “The plaintiff in this case, gentlemen of the jury, has prepared a special verdict, which upon her theory of the case you may find, if you see fit so to find. You are not bound to find any of the facts, or to find any of the findings that are shown in this special verdict that will be submitted to you. As to every statement in it you are at liberty to find different. You are at liberty to disregard the paper altogether, and it is your duty to disregard it if you can’t concur in its findings, and prepare one of your own entirely different from this * * *. This is submitted to you merely as a form and merely to guide you in so far as the issues are concerned from the standpoint of the plaintiff.”

This is the record of a rather unusual course of practice, although it has been common in the past to ask for special verdicts, and the right, to do so is clearly provided in Section 5201, Revised Statutes, which is: “In all actions, the jury, unless otherwise directed by the court, may in its discretion render either a general or special verdict; but the court shall, at the request of either party, direct them to give a special verdict in writing upon all or any of the issues,” etc. Here it was requested that the jury return a special verdict on all the issues, and it was so done. The court had no discretion in the matter, nor had the jury any discretion when the demand was made for a special verdict in writing. It so happened, as we presume, that the jury chose to adopt the form submitted as meeting its conclusions from .all the evidence, inasmuch as they asked for .no other form and made no attempt to draft another. The whole proceeding touching the form of the verdict was in open court and in the presence of counsel for both parties, and there is no claim or insinuation that unfair means were used or advantage taken of the situation, and while the practice disclosed here is not common, we see no reason to condemn it in this case. It has always been the practice for the court to draw up and send to the jury forms of general verdicts, and the way was open in this case for counsel for defendant to have "his form of special verdict sent to the jury. There was no such irregularity in the special verdict or in the manner in which it was prepared and returned as will require us to set it aside.

' In the light of this special verdict, it seems that the insurance company has not been prejudiced by the court refusing to give several of the special requests.

Entertaining these views, wé reverse the judgment of the circuit court and affirm that of the common pleas.

Judgment reversed.'

Shauck, C. J., Crew, Spear and Davis, JJ., concur.


source: Caselaw Access Project

author: Shauck, C. J.

license: Public Domain

text:
    Menuez v. The Grimes Candy Company.

      Contempt of court — May be punished by judge — Other than one . making decree — Judgment granting injunction■ — Appealed to circuit court — Circuit court may punish pending appeal, when.

    1. Contempts of court being punished as offenses against the administration of justice and'not as personal affronts to those ■ who exercise judicial functions, it is not indispensable that the violation of an injunction be punished by the judge who made the decree.
    2. An appeal having been taken to the circuit court from a judgment of the common pleas granting a perpetual injunction, a subsequent violation of the decree should be punished as a contempt by the circuit court, the statute providing that notwithstanding the appeal the injunction shall continue in force until suspended by the circuit court or two judges thereof.
    (No. 10683
    Decided December 17, 1907.)
    Error to the Circuit Court of Erie County.

      The plaintiff brought suit in the court of common pleas of Erie county for a perpetual' injunction restraining the defendant from the continuance of wrongs set forth in his petition. Upon a trial of the issues of fact the court found for the plaintiff and decreed a perpetual injunction as prayed for. The defendant at once perfected an appeal of the cause to the circuit court, and without taking any steps whatever to procure a dissolution or suspension of the injunction, continued to do the acts which it prohibited. The plaintiff thereupon filed in the circuit court a complaint with affidavits showing the aforesaid violation of said injunction, and charging the defendant with a contempt of court. This complaint the circuit court dismissed solely upon the ground, as appears from the record, that it was without jurisdiction in the premises.

      Messrs. Williams & Ramsey and Mr. E. B. King, for plaintiff in error.
    Where an appeal from a final order of the court of common pleas, part of which final order is an injunction, has been properly perfected in the circuit court, has such court jurisdiction to punish for contempt of court, the violation of such injunction?
    The question is one involving purely the law of Ohio upon the question of appellate procedure. A determination of the character of the technical appeal in Ohio is necessarily involved. Fortunately, upon the general question all doubt has long since been removed by a line of decisions of this court. Mason v. Alexander, 44 Ohio St., 328. In the latter case attention is called to the discussion of this subject by Swan, J., in Grant v. Ludlow’s Admr., et al., 8 Ohio St., 1; Bradford et al. v. Watts, Wright, 495; Bassett et al. v. Daniels et al., 10 Ohio St., 617; Long v. Hitchcock, 3 Ohio, 274; State, ex rel., v. Meacham, Clerk, 3 C. D., 335, 6 C. C., 31; Ginn v. Commissioners, 5 C. D., 412, 11 C. C., 396, affirmed, without report, in 58 Ohio St., 693.

      Mr. H. L. Peeke, for defendant in error.
    Can a court that never made an order in a case punish a person for contempt for violating an order of another court?
    We claim it is elementary law that only the court making the order can punish for contempt. Rapalje on Contempt, page 15, Sec. 13; People, ex rel., v. Judge, 27 Cal., 151; Johnston v. Commonwealth, 1 Bibb. (Ky.), 598; Phillips v. Welch, 12 Nev., 168; Morris v. Whitehead et al., 65 N. Car., 637; Penn, Jr., et al. v. Messinger et al., 1 Yeats (Pa.), 2; In re Williamson, 26 Pa. St., 9; State, ex rel., v. Bridge Co., 16 W. Va., 864; Smith v. Caldwell, Sneed (Ky), 341; M’Laughlin v. Janney, 6 Gratt (Va.), 609; Lord Mayor’s Case, 3 Wils., 188; 9 Cyc., page 30, “E”; Hawes on Jurisdiction, 223.
    And why should this not be correct as a matter of principle? Upon what .basis of justice or common sense can a person be punished by a court that never made an order in the case for violating the order of another court? The case of Myers v. State, 46 Ohio St., 473, is ample authority for the proposition that in Ohio the court of common pleas has sufficient power to protect its own orders.
   Shauck, C. J.

Counsel for the defendant suggests no mode for the enforcement of an injunction, other than a" proceeding in contempt against him who violates it. He proposes as elementary and as conclusive of the present case, that only the court which makes an order may punish the contempt which is implied in its violation. He admits no exception to this proposition unless the act which is a contempt is also an offense against the state, and so punishable by a court having jurisdiction of crimes and misdemeanors. We may concede that this view is taken in cases cited, and that it might be applicable here if ’the jurisdiction of the circuit court had been- invoked by a petition in error for a reversal of the judgment of the court of common pleas for error appearing upon its record. It is, however, too remote from the question here presented to be helpful in its determination. This was not a proceeding in error requiring a new petition to be filed in the circuit court and a summons issued to secure jurisdiction of the person of the defendant in error. It was an appeal with a view to a trial de novo; the steps necessary to perfect the appeal being taken in the original suit and requiring neither further pleadings nor process. When defendant perfected its appeal by giving the required notice and bond, the case by operation of law at once passed from the jurisdiction of the common pleas into that of the circuit court. A part of the case which so passed was the perpetual injunction from which the appeal was taken. Thereafter authority to suspend, modify or enforce the injunction was exclusively in the circuit court. All this is clearly expressed or implied in the provisions of Section 5235 of the Revised Statutes, defining, the effect of the appeal: “When an appeal is taken, and bond given, the judgment is thereby suspended, unless some part of the final judgment appealed from be an injunction, in which case such injunction shall not be suspended, except by order of the. circuit court or two judges thereof on reasonable notice to the adverse party. * * No action by the circuit court was required or contemplated to maintain the force of the injunction after the appeal, for the statute expressly preserved it. No such action could be taken by the court of common pleas for the case had passed from its jurisdiction. To conclude that the injunction may be violated with impunity, and thus rendered practically inoperative would be quite inconsistent with the careful provision made fors its preservation in the appellate court. Both the moral and legal effect of the punishment of contempts will be missed if it is regarded as the resentment of personal affronts offered to judges. Contempts are punished as offenses against the administration of justice, and the offense of violating a judicial order is punishable by the court which is charged with its enforcement, by whomsoever it may have been made.

Judgment reversed and cause remanded to the circuit court for further proceedings.

Reversed.

Price, Crew, Summers, Spear and Davis, JJ., concur.


author: Davis, J.

text:
    The Baltimore & Ohio Railroad Co. v. McIlyar.

      Repair of fence — Between railroad and adjoining land — Land owner refuses to permit repair — Injury to horse caused by defective fence — Railroad not liable, when — Negligence.
    Where a railroad company is proceeding to repair or rebuild a defective fence along the line of its right of way and upon the line where the fence has always been, and the adjoining land owner orders the company’s employes off the premises and notifies the company to stop work, claiming that the line of the old fence is not the true line, and the adjoining proprietor continues to use his land as a pasture knowing that the fence is defective and dangerous, without revoking or modifying his warning to the company or doing anything to determine the true line, and his horse is then injured by becoming entangled in the loose barbed wire of the defective fence, he can not recover for the injury to the animal, because his own conduct has proximately contributed to bring about the condition which resulted in the injury.
    (No. 10294
    Decided January 21, 1908.)
    Error to the Circuit Court of Guernsey County.
    This action was brought to recover damages from the railroad company for an injury to the plaintiff’s horse by its coming in contact with a barbed wire belonging to the fence between the company’s right of way and the plaintiff’s premises. The petition alleged that it was the company’s duty to construct and maintain in good repair a fence between its railroad and the land of the plaintiff and that it had theretofore constructed such a fence. It then proceeds to charge as follows: “Without any knowledge or fault on the part of plaintiff the defendant neglected and failed to maintain said fence in good repair, and negligently and carelessly caused, suffered and permitted said fence to be broken down and said strands of barbed wire to be detached in places from the posts and stretched and thrown down for a considerable distance on said plaintiff's parcel of ground and to remain there.” Plaintiff then avers that his horse became entangled in the said barbed wire and was injured thereby, for which he prays judgment. The defendant filed a demurrer to the petition, which was overruled. The defendant answered admitting that it was a railroad company operating the railroad referred to in the petition, and denying the other averments of the petition, and pleading contributory negligence by the plaintiff. Plaintiff replied denying the averments as to his negligence. On the trial, at the close of all the evidence, the defendant moved the. court to direct a verdict in its favor. This motion was overruled, and a verdict was rendered for the plaintiff. Before judgment upon the verdict was rendered, the defendant moved for judgment notwithstanding the verdict, on the ground that the petition did not state facts sufficient to constitute a cause of action and that upon the pleadings the defendant was entitled to judgment. This motion was likewise overruled. Motion for a new trial was filed,' overruled, and exception taken thereto. Judgment was rendered on the verdict and on error this judgment was affirmed by the circuit court. .Plaintiff in error, defendant below, prosecutes error in this court to obtain reversal of the judgments of the courts below.

      Mr. Fred. L. Rosemond and Mr. F. A. Durban, for plaintiff in error.

      Mr. J. B. Ferguson, for defendant in error.
   Davis, J.

It convincingly appears that there was a defective fence between the railroad company’s right of way and the plaintiff’s land; that the plaintiff knew that the fence was defective; that the railroad company had men and material on the ground and was proceeding with the work of reconstructing the fence on the same line on which the old fence was situated; and that the plaintiff thereupon, claiming that the fence was not on the true line, both orally and in writing notified the company’s employes to cease erecting a fence on that line, accompanying the notice with a covert threat that if they did not heed the warning they would have to take the consequences. The company’s servants thereupon left the fence in the condition in which it was when the plaintiff ordered them to stop the work. The plaintiff never retracted or modified this demand or order; and with full knowledge of the condition of the fence he continued to pasture his horse there for about two years until it was injured on his own premises by becoming entangled in a barbed wire belonging to the fence and lying loose upon the ground.

Under these facts, which are substantially undisputed, it does not seem to us to be necessary to determine whether the demurrer to the petition should have been sustained or overruled; nor whether the standards of the common law or those of the statute regulating the fencing of railways should be applied in this case. If it be conceded that it was the duty of the railroad company to so construct and maintain a fence between its premises and those of the plaintiff as to avoid injuring the plaintiffs stock while on his land and hot on the railroad track or right of way, we are. still confronted with the question whether the plaintiff has not forfeited whatever right to compensation he might have had by his own contributory negligence; for it was elaborately discussed and decided in Railway Co. v. Methven, 21 Ohio St., 586, that whether the right of recovery be under the common law-or under a statute, the doctrine of contributory negligence applies, unless it is clearly forbidden by statute.

The facts in this case show that the plaintiff was directly responsible for the condition of the fence at the time the horse was injured. It was being rebuilt when he peremptorily ordered the workmen away. His alleged reason for doing so may have been a good one; but whether he was right or wrong in his claim that the company was encroaching on his land it should at least appear that he made some -effort, during the two years that elapsed before the accident, to settle the true line. The company was proceeding to reconstruct the fence on the line formerly occupied and it is not suggested that it had ever been disputed before; nor is there anything in the record to raise even a suspicion that it was not the true line, except the plaintiff’s denial; and indeed, the plaintiff admitted ón the trial that the fence was on the true line. The railroad company therefore, so far as the rights of the plaintiff are concerned, was absolved from the duty of repairing or reconstructing the fence so long as his notice and the accompanying threats stood unretracted and so long as the dispute about the line was not settled.

The judgments of the circuit court and that of the court of common pleas are reversed and we render a final

Judgment for plaintiff in error.

Shauck, C. J., Crew, Summers and Spear, JJ., concur.


author: Spear, J.

text:
    The Mahoning Valley Railway Company v. Van Alstine, Administrator.

      Action for damages for personal injuries — Injuries cause death of plaintiff — Personal representative may prosearte such action— Sections 3144, 6134 and 6133, Revised Statutes — Two actions not in same right, when — Recovery in one not bar in other— Law of damages.

    1. Section 5144, Revised Statutes, gives to the personal representative of a deceased person the right to prosecute an action for injuries to person began by such deceased to recover in the interest of the estate such damages as were suffered by the deceased because of the wrongful acts of another, even though the death was the direct consequence of the injuries inflicted.
    2. Sections 6134 and 6135, Revised Statutes, give an independent right of action for the benefit of the persons named in section 6135, where death has resulted from the injuries, to recover for such pecuniary loss as they have sustained by the decease of the injured person, such right being subject to the condition that the act, neglect or.default, is such as would have entitled such person to maintain an action and recover damages in respect thereof if death had not ensued.

      3. The two actions, although prosecuted by the same personal representative, are not in the same right, and hence a recovery and satisfaction in one case is not a bar to a recovery in the other.
    (No. 10432
    -Decided January 21, 1908.)
    Error to the Circuit Court of Mahoning county.
    Action was brought in the common pleas of Mahoning by defendant in error as administrator of the estate of Alice M. Baird, deceased, in the interest of the next of. kin of said deceased, against the plaintiff in error, The Mahoning Valley Railwajr Company, a street railway corporation, to recover for the alleged wrongful and negligent killing of said deceased, who was, at the time of the accident, April 11, 1901, a passenger on a car of the said Company, and who died October 3 thereafter.
    As a defense to such action it was pleaded by the Company in its answer in substance that said deceased, during her life, to-wit: August 3, 1901, commenced an action against the Company to recover compensation for all the injuries she received and all damages sustained on account of the same alleged negligent acts of the Company which are described and complained of by the plaintiff herein; that while said action was pending said Alice M. Baird deceased, and thereupon, on December 17, 1901, her said civil action was, on the motion of her administrator, Thomas B. Van Alstine, duly revived by order of court and was thereafter prosecuted in the name of said administrator to final judgment against said defendant Company, which said judgment, and all costs of the action, have been fully paid and satisfied by the said Company. The wrongful and negligent acts averred and stated in the petition filed by said Alice M. Baird in her said action are precisely and identically the same wrongful and negligent acts of defendant averred and stated by plaintiff herein, and the cause of action upon which said Alice M. Baird sought to recover and upon which said final judgment was rendered is precisely and identically the same cause of action upon which recovery is sought against defendant in this action, arid by the record of said final judgment rendered the said administrator is concluded and estopped from the further prosecution of this action. . 1
    To that answer the administrator replied in substance admitting that the wrongful and negligent acts of the Company averred and stated in the action on which final judgment was rendered are the same wrongful and negligent acts of the company . averred and stated by this plaintiff in his pleading herein, but in substance denied that the cause of action upon which said Alice M. Baird sought to recover and upon which final judgment was rendered is precisely and identically the same cause of action stated' and averred in the pleading herein and upon which recovery is sought against defendant in this action; denying also that by the record of said final judgment he is concluded and estopped from the further prosecution of this action. And for further reply averred in substance that, by an amendment filed by said administrator December 28, 1901, to the original petition of Alice M. Baird in her action, and by a disclaimer filed by said administrator June 3, 1902 (said dates being prior to the time of trial of said case), said administrator dismissed all claims for damages made by Alice M. Baird during her lifetime, in the petition by her filed, except for compensation for the pain and suffering endured by her from the time of injury complained of in her petition to the time of her death, the period of one hundred and sixty days. And that said judgment so recovered by said administrator against said Company in said action represented only compensation for the pain and suffering endured by said Alice M. Baird for the period of one hundred and sixty days, and was not recovered for, or paid to, the individuals for whose benefit this action has been' brought.
    In the common pleas a general demurrer to the reply was filed, which being sustained, the .plaintiff not desiring to further plead, judgment was rendered against the plaintiff and for costs. On error to the circuit court that judgment was reversed and the cause ordered remanded to the common pleas for further proceedings. The Company brings error.

      Messrs. Arrel, Wilson & Harrington, for plaintiff in 'error.

      Messrs. Murray & Koonce and Mark M. Gunlefinger, for defendant in error.
   Spear, J.

It will be observed that the question of difference is not whether or not the acts of negligence alleged and relied upon in the two actions were identically the same, but rather whether or not the cause of action in the case upon trial was the identical cause of action set up in the first suit and adjudicated by the final judgment therein. It is the contention of counsel for the plaintiff in' error that not only were the negligent acts identically the same but that the causes of action were also identically the same, and that, this being so, the prosecuting of the deceased woman’s cause by her • administrator in the revived action, and the final judgment and satisfaction thereof, must have- precisely the same legal effect as though Mrs. Baird had lived and had herself prosecuted her action to final judgment, because the administrator, being her personal representative, must be held to have succeeded to all rights which she had, and to stand in all respects regarding that action as she did before suit- had she herself recovered judgment in the case. Nor, say the learned counsel, could the administrator, by disclaimer, or by any- attempt to waive his right to recover any item of damages which he was entitled to recover in that action, limit the effect of the final judgment as a bar to a second action, the causes of action being, as before stated, identically the same. So that the disclaimer by the administrator before trial of all claims for damages made by the deceased in her petition except for pain and suffering endured by her from the time of the accident until her death cannot have the effect of permitting any omitted grounds of damage to be tried in another action, for a party must unite all his claims for damage arising from the same transaction in one suit against the party and cannot split them up and try some in one case and others in a subsequent case. And this view was sustained by the court of common pleas in its holding in sustaining the'demurrer to the reply and rendering judgment against the plaintiff.

It is, however, the contention of defendant in error that Alice M. Baird had a common law cause of action existing at the time of her decease, which by the statute survived and might be prosecuted as it was prosecuted after revivor by her administrator to recover such damages and' such only as she herself had sustained by reason of the injury for the benefit only of her estate, while the second action, although by the same administrator, was not in any sense for the injury she had sustained, not for pain or suffering, not for the benefit of her estate, but solely and only for the benefit of her next of kin, whose loss was caused by her death and whose damages were to be measured by the pecuniary loss which they had sustained by reason of such death. And this contention was sustained by the circuit court in its judgment of reversal.

Which of these contentions is the law of the case is the question presented to this court.

By the rules of the common law the action pending at the time of Mrs. Baird’s death, and her cause of action, would have abated by reason of her death, but the provisions of sections 4975 and 5144, Revised Statutes, changed the common law rule in those respects. Those sections are as follows: “Sec. 4975. In addition to the causes of action which survive at common law, causes of action for mesne profits, or for injuries to the person or property, or for deceit or fraud, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same.” “Sec. 5144. Except as otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of either party.” The right of the administrator, therefore, to recover in the revived action rested upon the common law right of action inhering in the injured person, and the preservation of that right in the administrator by virtue of the sections above quoted. The right to maintain the action brought by the administrator in the interest of the next of kin rests upon sections 6134 and 6135, Revised Statutes, the pertinent parts of which are as follows: “Sec. 6134. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the corporation which, or the person who would have been liable if death had not ensued, or the administrator or executor of the estate of such person, as such administrator or executor, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter; and when the action is. against such administrator or executor the damages recovered shall be a valid claim against the estate of such deceased person.” “Sec. 6135. Every such action shall be for the exclusive benefit of the wife, or husband, and children, or if theré be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the personal representative of the deceased person; and in every action the jury may give such damages, not exceeding in any case ten thousand dollars, as they may think proportioned to the pecuniary injury resulting from such death, to the persons respectively for whose benefit such action shall be brought. Every such action shall be commenced within two years after the death of such deceased person; * * * the amount received by such personal representative, whéther by settlement or otherwise, shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making the appointment in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiaries and the laws of descent and distribution of personal estates, left by persons dying intestate.”

The question in our case, therefore, centers around the construction to be placed upon and the effect to be given to the foregoing sections of the statute. Did the lawmakers, by this legislation, intend to preserve from abatement the right of the administrator to recover damages for the benefit of the estate where the party injured died from the effect of the wrongful act and as a consequence of it, and also to create a new and independent right of action to be enforced by the administrator for the benefit of the next of kin with the right to recover damages for their pecuniary loss sustained by the decease of the injured person? It is the insistence of counsel that such was not the intention. The sections quoted, it is urged, do not at least in language undertake to preserve from abatement causes of action for injuries to the person where the injured person dies directly in consequence of the injuries inflicted, and when it is remembered that in the same act provision is made for a right of recovery for the benefit of those named in section 6135, it becomes apparent that the general assembly only intended to preserve causes of action where the injured person died from a cause other than that of the injuries inflicted. .If the intention had been otherwise the addition of a very few words would have made that intention clear. It results from this that, taking the sections all together, the real purpose was to provide that where a party is injured by such wrongful act and dies directly in consequence thereof, his cause of action abates, and that eo instanti a cause of action arises and vests in the persons named in the statute to be prosecuted by the administrator for their sole benefit; and if the injured party has commenced an action upon his cause of action and pending that dies in consequence of his injuries his action abates; and if the injured party dies from, a cause other than his injury, his cause of action survives and may be-prosecuted by his administrator; or if he has commenced an action upon his cause of action and dies pending the action from a cause other than his injury, his action may be revived in the name of and be prosecuted tq final judgment by his administrator; and that if he dies and his administrator commences and prosecutes to final judgment an action upon his cause of action, and receives payment of such judgment,, or if he dies pending an action which he has brought against the wrongdoer, and the action is revived by order of the court in the name of the administrator and prosecuted to final judgment which is fully paid, then and in that event, the record of such action is conclusive upon the administrator in an action brought by him against the wrongdoer under favor of sections 6134 and 6135, Revised Statutes, upon all questions necessarily involved in that action, and among others, upon the question that he, the decedent, did not die in .consequence of the wrongful act, neglect or default of the wrongdoer.

These propositions are urged by an ingenious and persuasive argument, and a number of authorities are called, to our attention which, to a greater or less extent, tend to support the claims of counsel, some of which will be here referred to. It is presumed that in the main the statutes involved giving a right of action for the benefit of the next of kin are similar to the statutes of this state. Legg, Admr., v. Britton, 64 Vt., 652, was an action for the benefit of the widow and next of kin for the wrongful act of defendant resulting-in the death of plaintiff’s intestate. The defendant pleaded that the intestate in his lifetime began suit for the same neglect and deceased while the suit was pending, and that the administrator prosecuted the same to'judgment which was paid. The plaintiff replied that the damages recovered and paid in that suit were for the injuries done the intestate during his lifetime, and did not include the damages occasioned his widow and next of kin by his death. The court sustained a demurrer to this reply and held such judgment a bar to a second suit although the damages awarded in the first suit were solely for the injuries to the deceased person in his lifetime. In Littlewood, Admx., v. Mayor, etc., 89 N. Y., 24, it is held that when one injured by the wrongful act of another brings suit and recovers damages, in case death subsequently results from the injury, his personal representative cannot maintain an action, the object of the statute being not to impose a double liability, but simply to give a right of action where a party, having a good cause of action, was prevented by death resulting from the injury from enforcing his right or omitted in his lifetime so to do. In Lubrano, Admr., v. Atlantic Mills, 19 R. I., 129, it is held that the actions for damages to the person which survive are such only as are for injuries not resulting in death, and in cases where death results from the injury the only remedy is an action for damages for such injuries as might have been maintained at common law had death not ensued. In Hill v. Penn. Rd. Co., 178 Pa. St., 223, it is held that, under the statutes of Pennsylvania, a widow has no independent right of action for the death of her husband caused by the negligence of another which the husband could not release in his lifetime after the injury. In Holton v. Daly, Admx., 106 Ill., 131, it is held that, under the statute of Illinois of 1853, which gives an action to the legal representative of a deceased person to recover damages in case the death of the intestate was caused by the wrongful act of another, the cause of action is the wrongful act causing the death and not merely the death itself. In such case the declaration must aver and the proof show a wrongful act causing-the death under such circumstances as would entitle him to maintain an action if death had not ensued. No damages can be allowed for the pain and suffering the deceased underwent, and his inability to attend to his affairs and for medical attendance and nursing, but only such as arise from pecuniary loss to the widow and next of kin. An action brought by the party injured, where injury results in his subsequent death before judgment, does not survive to his personal representative, but will survive if his death is from some other and different cause. In Martin, Exr., v. Ry. Co., 58 Kan., 475, it is held that for an injury resulting in death an action can be maintained only for the next of kin. If death results from the injury an action cannot be maintained for the benefit of the estate; but where the injured person dies from other causes’ an action for personal injury survives to the personal representative.

The foregoing conclusions of counsel .seem reasonable deductions providing it is assumed that the legislation of this state has, not given two distinct grounds of action where death results from the injuries. But. that is the very question involved in this cáse.

In support of the proposition that two rights of action are given even though death results from the injuries a number of authorities are called to our attention by the learned counsel for defendant in error, some of which will be here noticed. It is conceded that our death statute, so called, sections 6134-6135, is a substantial reproduction of the English statute known as Lord Campbell’s act. That act has received construction by a number of adjudications by the courts of .that country. Leggott, Admr., v. G. N. Ry. Co., 1 Q. B. Div., 599, was an action to recover for negligence on account of inability to attend to business, loss of time and expense incident to the injuries. Defense that after the death plaintiff as L.’s administrator, for the benefit of .the wife and children, sued defendant in respect of the injury caused to them by his death and recovered. Held that the second action was not barred by the judgment; that although the administrator nominally is the plaintiff, yet is not suing in the two actions in the same right, the present one being for the benefit of the estate of the deceased while the former action was under the statute and for the benefit of the persons therein named. In Bradshaw v. L. & Y. Ry. Co., 10 L. R. C. P., 189, where a passenger was injured by accident and after an interval died in consequence, it is held that an action might be maintained for damage to personal estate arising from loss' in inability to attend to business, medical expenses, etc.; that the action is for breach of contract accruing in his lifetime but which ultimately caused his death, and does not come under Lord Campbell’s act, the intention of that act being to give the personal representative the right to recover as trustee for the benefit of the children or other relatives for loss by reason of the injured person’s death, and not to affect any existing right belonging to the personal estate in general. In Robinson v. C. P. Ry. Co. (1892), A. C., 481, the House of Lords held that the action authorized by Lord Campbell’s act is a different action from that which might have been maintained by the deceased if he had survived, and is a new action given by the statute. Without citing further cases it may be safely assumed that the settled law of England to-day is in consonance with these adjudications. Coming now to adjudications in our own country we find many which in substance are of like import. In Whitford v. P. Ry. Co., 23 N. Y., 465, it is held that the statutes are not simply remedial but create a new cause of action in favor of the personal representative which is wholly distinct from and not a revivor of the cause of action which, if he had survived, he would have for his bodily injury. In V. & M. Rd. Co. v. Phillips, Admr., 64 Miss., 693, it is held that an administrator may maintain any personal action which the decedent might have prosecuted, including damages for an injury inflicted by a railroad company which resulted in the death of such decedent, and such right of action is distinct from and independent of the right given by statute to the next of kin to recover for the death of the person caused by the wrong of another. In Putman v. S. P. Co., 21 Ore., 230, it is held that a mother during the continuance of the relation of parent and child may maintain an action in her own right for damages caused by the death of her child, while the personal representative of the deceased is given a right to recover for any injur)*- which the estate may have sustained. In Davis v. Railway, 53 Ark, 117, it is held that under the statute of Arkansas which provides that all actions for wrongs done to the person of another may, after his death, be brought by his personal representative for the benefit of his estate, such action may be prosecuted at the same time with one for the benefit of the widow and next of kin for pecuniary loss sustained by the death, and a recovery in one action will not be a bar to a recovery in the other. In Belding v. B. H. & F. P. R. Co., 3 S. D., 369, it is held that the statute of South Dakota, which provides that if the life of any person shall be lost the personal representative may institute suit to recover damages in the same manner that the person might have done for any injury when death did not ensue, is a survival statute, and the only damages recoverable are such as the estate has sustained but not for the loss of life. The section giving the right to the representative to recover for the loss of the life creates a new cause of action and is for the exclusive benefit of the persons named in the statute. In Hedrick v. I. R. & N. Co., 4 Wash., 400, it is held that under the statute of Washington a father may maintain an action for the death of his child although the administrator of the child’s estate may have theretofore recovered judgment against the same defendant for causing the child’s death by wrongful act or neglect. In Bowes v. Boston, 155 Mass., 344, it is held that an administrator of a person injured by defect in the highway, who after an interval dies of his injuries, may maintain an action to recover for the injuries for the benefit of the estate, and at the same time a second action for the loss of life for the benefit of the widow and children or next of kin. In Brown, Admr., v. C. & W. Ry. Co., 102 Wis., 137, it is held that the liability created by the statutes of Wisconsin in the case of the death of a person by an actionable injury for which such person could have recovered damages if death had not ensued, is for the benefit of certain relatives named in the statute. Actions for injuries to the person survive although death ensue from the injury. Such action is separate and distinct from the loss to surviving relatives; and if a person die from the effects of an actionable personal injury, not having received satisfaction for his damages, action therefor for the benefit of his estate may be prosecuted to satisfaction after his death. Without quoting from or citing other cases it is safe to say that the preponderance of judicial decision in this country favors the proposition of two independent rights of action.

Coming to our own state we find that questions analogous to those involved in. this controversy have been before this court in a number of cases. The general nature of the action authorized by sections 6134 and 6135, . and the character of the compensation justified, are quite fully and intelligently set forth in Steel, Admr., v. Kurtz, 28 Ohio St., 191. The same phases are emphasized in Russell v. Sunbury, 37 Ohio St., 372, and the distinction between the ground of recovery where action is brought by the injured person and an action by a representative for the benefit of the next of kin is clearly set forth, and the plain inference would seem to be that the action by the representative for the next of kin is an independent right given by statute and not affected by an action by the same representative in the interest of the estate. The court held in that case that the action abated by the death of the defendant. That decision was rendered in 1881. Coming to amend the statute respecting the survival of pending actions and of causes of action a few years after this decision, the general assembly then provided (90 O. L., 140), that causes of action for injuries to the person should survive, and further provided that where a deceased defendant would have been liable had he lived his executor or administrator shall be liable-and any judgment recovered shall be a valid claim against the estate. Had the opinion in the above cited case not been in accord with the intent of the lawmaking body as already expressed in the statutes it would have been a most natural thing to amend the statute also in that particular. No such amendment appears. On the contrary, the right of the administrator is made more ample. But beyond this, the above mentioned act, entitled an act to amend sections 4975, 5144 and 6134 of the Revised Statutes, is a re-enactment of those sections except as hereinbefore stated, and except that the words “assault, or assault and battery” are left out of section 5144. The act comes to us, therefore, as the last expression of the legislative will. In one section, recognizing the common law right of action for wrongful injuries to person, it extends the remedy, and in another section accords a separate and independent right in favor of the persons named in the statute. Is it not reasonable to conclude that had it been the intention to cause a, recovery in one case to be a bar to a recovery in the later case some expression of that purpose would have been given ?

The case of O. & P. Coal Co. v. Smith, Admr., 53 Ohio St., 313, is also in point. That suit grew out of an action commenced November 10, 1892, by one Henry Davidson against the coal company to recover for personal injuries received by reason of the alleged xxegligence of the company during the pendency of Which the plaintiff died. On motion of his administrator, Smith, he was substituted as plaintiff and the action was revived in his name, and proceeded to final judgment, the damages being for loss of time occasioned by his injuries, the value of his services for such loss of time, and the physical suffering he sustained by reason of his injuries. The pleadings are silent as to the cause of the death, but it appears by the briefs of counsel on both sides that an action had been commenced by the administrator under section 6134 and was pending at the time.of the trial of the revived action. The legal question principally argued related to the contention of the company’s counsel that the action abated by the death and did not survive, but this court held that the action was not within any of the enumerated exceptions of section 5144, and was properly revived, the syllabus being in this language: “A pending action to recover damages for injuries caused by the negligence of the defendant does, not abate by the death of the plaintiff.” It would seem that if the cause of the death had been, deemed an important factor in determining the case the language of the syllabus would have been qualified in a way to recognize the distinction. On the contrary, it is sweeping and unqualified.

Attention may properly also be called to the case of the plaintiff in error herein against the same administrator, in this court, 70 Ohio St., 469, which was an error proceeding growing out of the controversy arising in the revived action. The pleadings in the case do not show that the cause of the death of Mrs. Baird was made an issue in the case, but the record does show that at the close of the testimony counsel for defendant moved the court for a directed verdict on the ground that plaintiff claimed that decedent’s death resulted directly from injuries received from the collision. This motion was refused. Defendant’s counsel then requested the court to instruct the jury that plaintiff could not recover if the jury should find that the injuries received by the deceased were the sole cause of her death. This was refused, and the court thereupon charged the jury, among other things, that “it is claimed here that Mrs. Baird died as a direct result of the injuries received in this collision;” and, in speaking of damages, the court instructed that there can be no compensation given for Mrs. Baird’s death “even if it appear to you that the cause of her death was this negligent injury.” So that the question was full)'- made at the trial and as all exceptions were preserved by the Company’s counsel the question was in the record in the circuit court and in this court. The affirmance means in law that the trial court did not err in this respect, and the record showing that the administrator’s whole case rested upon a right to prosecute the action commenced by his decedent, the affirmance means farther that, in the judgment of this court, such a pending action survived although the deceased died from the injuries received from the wrongful acts of the defendant Company. Had the court been of opinion that the fact of death arising from the injuries received concluded the case against the plaintiff below, it would have been its duty, and it seems certain that it would, have reversed instead of affirming the judgment of the courts below.

It is manifest from the foregoing that the revived action and the later action are not the same. They rest primarily upon the same alleged negligence of the defendant and the same absence of contributory negligence of the injured perspn, but in the revived action the damages are for personal injuries to the injured person for which an action would lie if death had not ensued, and such damages to enure when recovered to the benefit of the estate, while in the later action the suit is prosecuted in the interest of other parties and the measure of damages is the pecuniary loss they have sustained by the death. In the later case death gives the right of action under the statute, while, had the pending action not been susceptible of being revived, the death would have terminated the right to recover in the interest of the estate. Another significant distinction should be observed. In a suit by the injured party there is no limit by statute to the amount of recovery, and as to the time for commencement of suit the action is controlled by the general statute of limitations, while in the suit for those named in section 6135 the damages can not exceed ten thousand dollars, and the action must be commenced within two years after the death of the deceased person.

It is insisted that these sections of the statute are innovations upon the principles of the common law and should be strictly construed. This is true and the rule is recognized, but the policy and purpose of the statute are not to be ignored, and if they can be gathered, as we think they can, from the language used, it is the duty of courts to uphold and enforce them. It may be readily conceded that the sections, taken as a whole, are not free from ambiguity. But if one expects to find the statute laws perfect and harmonious, and free from all ambiguity, that person' will be sadly disappointed.

Attention is directed to some language in the opinion in Helman,. Admr., v. P., C., C. & St. L. Ry. Co., 58 Ohio St., 400, and the claim is made that it tends to sustain the contention of plaintiff in error in this case. We are not quite certain that we understand the force of the language quoted from the opinion, but the. principle of the case itself is easily comprehended. The syllabus is to the effect that in an action under sections 6134 and 6135 it is competent for the defendant to prove what the deceased said after the injury tending to show that the injury was caused by his own fault; and that is the whole case. The reason is obvious. If the accident was due in whole or in part to the deceased’s want of care, he could not have recovered if death had not ensued, and, as certainly, by force of the language of the statute itself, his administrator, no matter in whose interest he sued, could not recover.

It is insisted, further, that the theory of two causes of action will necessarily result in the assessment of double damages, at least in part, and this is emphasized by the learned judge who delivered the opinion in Holton v. Daly, supra. We are not able to perceive that this in practice would prove a very serious situation. At least the eminent jurist who presided in the common pleas at the trial of the revived action seemed to have no difficulty in giving to the jury a rule as to damages which, as it seems to us, would not embarrass the question of a proper rule of damages to be given the jury upon the trial of the second action. The objection is a plausible one. We are not impressed that it is sound. At least it can not avail if the right to a second action where death results from the injuries is given by the statute.

After much reflection and an extended examination of authorities we are reasonably satisfied that, under the sections of the statute quoted, the personal representative is given the right to maintain an action for the benefit of the persons enumerated in section 6135, commonly denominated the next of kin, based upon the negligent acts which caused the injury subject to the condition expressed in section 6134, viz.: that the circumstances of the injury were such as would if death had not ensued have entitled the party injured to maintain an action, although the injury was the sole and direct cause of the death, and although the same personal representative had prosecuted to final judgment and satisfaction a suit begun by the deceased in her lifetime to recover in the interest of her estate.

Finding no error in the judgment of the circuit court the same will be

Affirmed.

Shauck, C. J., Price, Crew, Summers and Davis, JJ., concur.