Suit was brought in an Ohio court, for wrongful death resulting from injuries sustained in the state of Kentucky. The petition did not set forth any Kentucky statute authorizing recovery of damages therefor in that state. After trial and verdict a new trial was granted and the plaintiff given leave to file an amendment to her petition setting forth a statute of Kentucky authorizing recovery of damages for wrongful death. Held:
1. The Ohio courts cannot take judicial notice of the existence of such statute of a sister state. Not having been plead in the petition, that pleading was subject to demurrer.
2. Since the action could not have been based upon any common law liability, an amendment to the petition setting forth such Kentucky statute was not a new, independent or substituted cause of action and was not a departure from the action commenced. It sought merely to cure a defect in the original pleading by supplying a missing allegation.
3. Under Section 11363, General Code, such amendment may be made after the period of limitation has expired, provided the action was commenced within that period. - Such amendment relates back to the time of the commencement of the action.
Judgment affirmed.
Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.