Opinion
No. 20135
Decided April 19, 1966.
Pleading — Wrongful death action — Section 2125.02, Revised Code — Beneficiaries to be specifically named — Action under survivor statute — Section 2305.21, Revised Code — Survivors need not be specifically named.
1. Fiduciary plaintiff in an action for wrongful death of his decedent, under Section 2125.02 et seq., Revised Code, must specifically name the persons, with relationship, for whose benefit the action is brought.
2. Fiduciary plaintiff in an action brought under the survivor statute, Section 2305.21, Revised Code, for injuries and their concomitants for which deceased would have had a cause of action, need not specifically name the survivors of decedent, with their relationship.
Mr. Frank B. Jandes, for plaintiff.
Messrs. Dinsmore, Shohl, Barrett, Coates Deupree and Mr. Powell McHenry, for defendant.
Plaintiff fiduciary brought suit for alleged injury and resulting death of his decedent caused by defendant's wrongful act, alleging his appointment, the location of certain streets, one of which decedent was crossing when struck by defendant's auto, and stating as to alleged negligent acts of defendant, following with several "specifications of negligence." He also states:
"* * * that this action is brought for the benefit of the next of kin and for the benefit of the estate * * *" and then sets forth the amount of damage claimed and prays for judgment.
Defendant moves the court to order the petition to be made definite and certain by "setting forth the next of kin for whose benefit the action is allegedly brought" and to order the striking out of the words "for the benefit of the estate."
The plaintiff has confused and intermingled two different causes of action, entirely different in nature, requiring two different findings by a jury, without the required separation of them.
Section 2309.05, Revised Code, provides that:
"The plaintiff may unite several causes of action in the same petition * * * when they are included in any of the following classes:
"(K) Claims by an executor or administrator for the wrongful death of his decedent under Sections 2125.01 to 2125.04, inclusive, of the Revised Code, and for injuries to the person or property, or both, of his decedent, surviving under Section 2305.21 of the Revised Code, when both claims arise out of the same wrongful act or acts;"
It is provided in Section 2125.02, Revised Code, that such action for wrongful death —
"* * * shall be for the exclusive benefit of the surviving spouse, the children, and other next of kin of the decedent. The jury may give such damages as it thinks proportioned to the pecuniary injury resulting from such death to the persons, respectively, for whose benefit the action is brought. * * *"
The survivors of decedent in a wrongful death action are the real parties in interest and it is necessary that the personal representative, as plaintiff, name in the petition who are "the surviving spouse," or "the children," or the "other next of kin of the decedent," for if no known person comes under the classes of survivors named in the statute, there would not be any pecuniary loss to anyone and an action for wrongful death would not lie.
The other action, under the so-called survivor statute, Section 2305.21, Revised Code, is for the benefit of the estate generally, by reason of the injuries and their concomitants for which the decedent would have had a right of action during his lifetime. The survivors named in the wrongful death statute need not be named in this action.
See among other cases: Gibson v. Solomon, 136 Ohio St. 101, 108, 16 O. O. 36, 39, 23 N.E.2d 996, 999.
The court finds that the first motion is well taken and must be sustained, and plaintiff must set forth the persons, by name and relationship, for whom the action for wrongful death is brought.
The court finds that the second motion is not well taken and must be overruled, and further finds that the two causes of action must be separately stated and numbered under Section 2309.07, Revised Code.
Plaintiff, in an amended petition, shall briefly set forth the statement of facts, as to each cause of action, in ordinary and concise language, as required by Section 2309.04, Revised Code. For examples of ordinary and concise language complying with the law, see Richards v. Farm-Orama Associates, Inc., 3 Ohio Misc. 13, 32 O. O. 2d 244, 206 N.E.2d 239.
Entry in accordance with this opinion.