Lawton v. Maratta et al.

[Special Term, June, 1871.] Lawton v. Maratta et al. In an action by tbc administrator of the decedent, against the owners of s steamboat, for the loss of his life, while on board as a passenger, by their negligence: Held, that although it must appear in the evidence, on the trial, that the accident occurred in Ohio, yet it need not be expressly so stated in the petition. The presumption is that the allegation relates to an occurrence as this states, unless the contrary appears: [MAJORITY — Storer, J.] Storer, J. A'suit brought against the owners of the' steamboat Emma, on which boat the plaintiff’s husband had taken passage, at New Orleans, for Cincinnati. The boat met with an accident on the trip, and the plaintiff alleges that owing to the negligence and carelessness of the officers of the boat the decedent lost his life. A motion is made by defense to make the petition more definite and certain, by stating where the accident occurred. This is a matter of evidence, and need not be averred in the petition. Unless the plaintiff- proves, on trial, that the accident occurred within the State of Ohio, the action can not be sustained, for we have heretofore decided that we would not extend the remedy in such cases to torts without the State. Our Supreme Court and the Supreme Court of New York have held the sanie principle. Campbell v. Rogers, 2 Handy, 111. Motion overruled.