Opinion
No. 32896
Decided May 21, 1952.
Abatement and revivor — Action for injuries to person — Against municipality resulting from nuisance — Survives death of injured person — Section 11235, General Code — Revivor in name of decedent's representative — Section 11401, General Code — Statutory provisions not affected by Section 11397, General Code — Actions for nuisance abate "unless otherwise provided."
1. Under the provisions of amended Section 11235, General Code, causes of action for injuries to the person survive.
2. Such action may be brought notwithstanding the death of the person entitled thereto.
3. Under the provisions of amended Section 11401, General Code, such action may be revived in the name of the representative of the decedent.
4. The provisions of amended Sections 11235 and 11401, General Code, relating to causes of action for injuries to the person, are not affected by the provisions of amended Section 11397, General Code, to the effect that actions for a nuisance shall abate by the death of either party "unless otherwise provided."
5. An action against a municipality for personal injuries resulting from a nuisance is not abated by the death of the injured person.
APPEAL from the Court of Appeals for Hamilton county.
In the Court of Common Pleas Kate Lewis instituted this action for the recovery of damages for injuries suffered to her person on June 13, 1948, when she fell while walking across a street which the defendant city had neglected to keep in repair.
Before the case was tried the plaintiff died on December 13, 1950.
Thereafter the administratrix of the plaintiff's estate was permitted to be substituted as the party plaintiff, and the action was revived in her name. She then filed an amended petition.
To the amended petition the defendant city filed a demurrer on the ground that the action was abated by the death of the original plaintiff.
The trial court sustained the demurrer and dismissed the action.
On an appeal to the Court of Appeals on questions of law, the judgment of the Court of Common Pleas was reversed, and the cause was remanded to that court for further proceedings.
The cause is in this court for a review by reason of the allowance of the defendant city's motion to certify the record.
Mr. John J. Rivers, for appellee.
Mr. Joseph F. Rusche, for appellant.
The defendant contends that this action is based on the theory of nuisance under favor of Section 3714, General Code, and that the action is abated under the provisions of amended Section 11397, General Code, inasmuch as the original plaintiff is deceased.
The language of the latter section is as follows:
"Unless otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both parties thereto, except actions 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 defendant relies, too, on the decision of this court in the case of Village of Cardington v. Admr. of Fredericks, 46 Ohio St. 442, 21 N.E. 766, the syllabus of which reads as follows:
"An action against an incorporated village founded upon a petition alleging in substance that a street much used by the citizens and the public, was so unskillfully and negligently constructed and left by the defendant as to be in an unsafe and dangerous condition, and allowed to become out of repair and obstructed by the rubbish and refuse of the village, so that it was highly dangerous, and that the plaintiff, while lawfully passing along the street, accidentally and without fault or negligence on her part, was precipitated down an embankment, whereby she was greatly bruised and injured, for which damages she asks judgment, is an action `for a nuisance' within the meaning of Section 5144, Revised Statutes, and abates at the death of the party injured."
However, the plaintiff suggests several answers to the defendant's contentions. She insists that the Cardington case, supra, is easily distinguishable on the facts. And, of even greater importance, she pertinently observes that this and cognate statutes have been amended twice since the decision in the Cardington case. This was then Section 5144, Revised Statutes. As enacted in 1853, it was not, as now, prefaced with the important phrase that "unless otherwise provided" certain actions shall abate. Somewhat similar language was added in 1878. Further changes were made in 1893. Then in 1910 the present phraseology was enacted as Section 11397, General Code.
Is it "otherwise provided?"
Amended Section 11235, General Code, now reads:
"In addition to the causes which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and the action may be brought notwithstanding the death of the person entitled or liable thereto."
In the former statute the words "injuries to the person" did not appear — obviously a very important difference.
Furthermore, amended Section 11401, General Code, now reads:
"If before judgment, one of the parties to an action dies, or his powers as a personal representative cease, but the right of action survives in favor of or against his representatives or successor, the action may be revived, and proceed in the name of such representatives or successors."
Under the provisions of these amended statutes it is apparent that "causes of action for * * * injuries to the person * * * shall * * * survive * * * the death of the person entitled * * * thereto," and such "action may be revived * * * in the name of such representatives or successors." Thus it is "otherwise provided," and hence it is immaterial whether the instant action is based on nuisance.
The defendant relies on the later decision of this court in the case of Darby, Admr., v. City of Cincinnati, 80 Ohio St. 733, 89 N.E. 1119, in which there was merely an affirmance without an opinion. It may have been based on the decision in the Cardington case and is overruled.
The Court of Appeals was not in error in ordering the trial court to overrule the demurrer to the plaintiff's amended petition.
Judgment affirmed.
ZIMMERMAN, STEWART, MIDDLETON, TAFT, MATTHIAS and HART, JJ., concur.