#### Hillard, Admr., Appellant, *v.*The Western & Southern Life Ins. Co., Appellee.

*427(No. 800

Decided January 6, 1941.)

*Mr. B. F. Welty,*for appellant.

*Messrs. Wheeler, Bentley, Neville <& Gory,*for appellee.

Guernsey, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Allen county, Ohio, dismissing the petition of the plaintiff Darius W. Hillard, as administrator with the will annexed of Roma H. Hillard, at his costs, after sustaining a general demurrer of the defendant, The Western & Southern Life Insurance Company, to the petition, and after plaintiff had signified his desire not to plead further.

The only assignment of error is that the court erred in sustaining the demurrer of the defendant to the petition.

*428The petition filed by the plaintiff alleges in substance that Darius W. Hillard was appointed and qualified as administrator with the will annexed of Roma IT. Hillard; alleges the corporate capacity of the defendant; and alleges that Roma H. Hillard had on the 20th day of June 1938, for a consideration stated in the petition, secured a policy of life insurance from the defendant under which the defendant contracted and agreed to pay a stated-sum upon the insured’s death.

It is further alleged that on June 27, 1938, some seven days after the parties had entered into the contract of life insurance aforesaid, plaintiff’s decedent submitted to an operation during the course of which it was learned that she was suffering from cancer of the liver; and it is further alleged that plaintiff’s decedent had no knowledge of the fact that she was suffering from such disease until August 11, 1938, when the agent of the defendant called upon her at her home and informed her of such fact, plaintiff’s decedent at the time being under the care of a physician and under the influence of morphine to quiet her pain, and recovering from a surgical operation.

The petition further alleges that defendant’s agent at that time informed plaintiff’s decedent that she had obtained the insurance by fraudulent representation.

The petition also alleges “that said agent informed said Roma H. Hillard that she had cancer at the time she secured said insurance, which statement so made was willful, intentional and wanton to cause said Roma H. Hillard to surrender such policy”; that the agent of the defendant demanded the surrender of such policy of insurance, which policy was thereupon surrendered by plaintiff’s decedent; that after plaintiff’s decedent had received the information as aforesaid, to wit, “that she had cancer, she refused to take any nourishment, became despondent, went to bed, suffered mental anguish and great pain, and died from *429the shock of said information on the 13th day of August 1938”; that the agent of the defendant while in the course of his employment “wrongfully and willfully killed said Roma H. Hillard in the manner as herein set forth, to the damage of the plaintiff in the sum of $10,000”; and that because of these injuries to Roma H. Hillard plaintiff incurred funeral expenses in the sum of $245.95.

The prayer of the petition is for judgment against the defendant in the sum of $10,245.95 with interest on $2451)5 from the 13th day of August 1938 and for costs of suit.

The demurrer to the petition is upon the ground that the petition upon its faee^fails to disclose facts sufficient to state a cause of action in law against the defendant.

It will be noted that this, is an action by an administrator in his representative capacity not brought under the provisions of Sections 10509-166, 10509-167 and 10509-168, General Code, giving an independent right of action for the benefit of the persons named in Section 10509-167, General Code, where death has resulted from the injuries, to recover for such pecuniary injury resulting from such death where such right arises from an act, neglect or default, such as would have entitled such person to maintain an action and recover damages in respect thereof, if death had not ensued.

Section 11235, General Code, provides: “In addition to the causes which survive at common law, causes of action for * * * injuries to the person * * ***also shall survive; and the action may be brought notwithstanding the death of the person entitled or liable thereto.”

Under the provisions of this section an administrator may maintain an action independent of the provisions of Sections 10509-166, 10509-167 and 10509-168, General Code, for injuries sustained by his decedent, *430in the same manner the decedent could have maintained such action if he had survived. In such an action by the administrator the damages are limited to damages for the injuries accruing during the lifetime of the decedent and do not comprehend damages for death resulting from such injuries, or funeral expenses occasioned by such death.

While the petition in the instant case alleges that the agent of the defendant wrongfully and willfully killed plaintiff’s decedent, such allegation, together with the allegation as to the amount of funeral expenses, insofar as this action is concerned, is mere surplusage. The other facts alleged in the petition are sufficient to state a cause of action in favor of the administrator under the provisions of Section 11235, General Code, above mentioned, if the petition otherwise states a cause of action. *Mahoning Valley Ry. Co.*v. *Van Alstine, Admr.,*77 Ohio St., 395, 83 N. E., 601; *May Coal Co.*v. *Robinette, Admr.,*120 Ohio St., 110, 165 N. E., 576. We will therefore consider whether the petition otherwise than in the particulars mentioned, states a cause of action.

It is the settled law of this state that “no liability exists for acts of negligence causing mere fright or shock, unaccompanied by contemporaneous physical injury, even though subsequent illness results, where the negligent acts complained of, are neither willful nor malicious.” Paragraph 3 of the syllabus in *Miller*v. *B. & O. Southwestern Rd. Co.,*78 Ohio St., 309, 85 N. E., 499, approved and followed in the case of *Davis*v. *Cleveland Ry. Co.,*135 Ohio St., 401, 21 N. E. (2d), 169.

In the opinion in the *Davis case, supra,*the rule set forth in the third paragraph of the syllabus in the *Miller case*is considered as extending to all cases of negligence of the character mentioned including those where the physical injury is a natural, probable and *431proximate result of a nervous condition ■which itself is a natural and proximate consequence of the defendant’s negligence.

While the rule in terms excludes from its operation only chses in which the negligent acts, that is, the acts of misconduct complained of, are either willful or malicious, the reasons for the exclusion of such types of cases from the operation of the rule as set forth in the opinion necessarily require the exclusion from its operation of cases where the acts of misconduct complained of are wanton, and we so hold.

The question to be determined then is whether the petition states a cause of action for willful, malicious or wanton misconduct. In order to make such determination it is necessary to consider what constitutes willful, malicious or wanton misconduct, and the rules of pleading applicable thereto.

Willful tort, that is, willful misconduct, involves the element of intent or purpose. It also involves the element of malice or ill-will, but it is not necessary to show actual malice or ill-will. It may be shown by indifference to the safety of others after knowledge of their danger, or failure after such knowledge to use ordinary care to avoid injury. *Payne, Dir. Gen.,*v. *Vance,*103 Ohio St. 59, 133 N. E., 85.

Wanton misconduct is such conduct as manifests a disposition to perversity, and it must be under such surrounding circumstances and existing conditions that the party doing the act or failing to act must be conscious, from his knowledge of such surrounding circumstances and existing conditions, that his conduct will in all common probability result in injury. *Universal Concrete Pipe Co.*v. *Bassett,*130 Ohio St., 567, 200 N. E., 843.

Willful misconduct involves both intention and malice and an allegation that the act was willfully, intentionally and maliciously' committed amounts to no *432more than an allegation that the act was willfully committed. '

If willful misconduct is relied on for recovery in an action for damages for personal injuries, facts must be pleaded which reveal on their face the element of willfulness. And if wanton misconduct is relied on for recovery in an action for damages for personal injuries, facts must be pleaded which reveal on their face the element of wantonness. *Universal Concrete Pipe Co.*v. *Bassett, supra.*

Examining the allegations of the petition in the instant case in the light of these rules it will be observed that while the petition alleges that the statement made by defendant’s agent to plaintiff’s decedent, that she had cancer at the time she secured the policy of insurance mentioned in the petition, was willful, intentional and wanton, the purpose of the agent in making the statement is restricted by the allegation to have been “to cause Roma H. Hillard to surrender such policy,” which in itself was a perfectly proper purpose. It will also be observed that there are no facts pleaded in the petition which reveal on their face any intent or purpose on the part of the agent of the defendant to injure plaintiff’s decedent, or of any knowledge on the part of the defendant’s agent of danger to plaintiff’s decedent upon which there might be predicated an inference of indifference to the safety of the plaintiff’s decedent after knowledge of her danger, or failure after such knowledge to use ordinary care to avoid injury, constituting willful misconduct; and there are no allegations of facts which reveal on their face conduct on the part of the defendant’s agent manifesting a disposition to perversity under such surrounding circumstances and existing conditions that the party doing the act or failing to act must be conscious, from his knowledge of such surrounding circumstances and existing conditions, that his conduct will in all common *433probability result in injury, constituting wanton misconduct.

Tbe petition, therefore, does not state a cause of action for either willful misconduct or wanton misconduct, and as, for the reasons hereinbefore mentioned, it does not state a 'cause of action for negligence, the Common Pleas Court properly sustained the demurrer to the petition and dismissed the same, and its judgment will be affirmed at costs of appellant.

*Judgment affirmed.*

Crow, P. J., and Klinger, J., concur.