The opinion
McCLELLAN, J.
(dissenting). Upon the’ issue of law arising on the pleading, my judgment entirely agrees with the considerations hnd conclusions set down in the notable opinion of Justice MILLER. After thorough re-examination on rehearing, this concurrence in his opinion is further confirmed in conviction of its correctness. It is only by attributing to that conclusion results and effects expressly refuted in the opinion of Justice MILLER that a contradiction of the view there stated can find any basis for logical support. It was therein declared that either the plaintiff must restore that which her predecessor had received or allege facts excusing restoration, some of which Justice MILLER instances in his opinion.
The unity of the estate persists, however numerous may be succeeding administrators; and there is no warrant whatever for treating the preceding administrator s act in settling the claim as the act of an individual, not as the act of one serving in a representative capacity.
As to the damages: I can find in this record no data whatsoever upon which (under the rule for calculation set down in the Trammell Case) anything more than nominal damages might have been legally awarded. The evidence concludes against any savings by intestate. He consumed himself all he made, and had done so for many months before his death. 1-Iis wife was not a charge, upon his means; and widence excludes the idea that he was contriouting to her support after her return to Ohio. This court has always held that in such actions under the Employers’ Liability Act the plaintiff must adduce evidence affording the necessary data upon which an award of substantial damages may be made. Hence it is my opinion that the action of the majority of the court in conditionally fixing the recoverable damages at $2,500 is not justified.
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In the main, but not entirely, I concur in tiie opinion of Justice THOMAS on this question.