Empire Metal Corp. v. Wohlwender

• Decision Date: 10 October 1969
• Citation: 445 S.W.2d 685
• Parties: EMPIRE METAL CORPORATION and William Richard Johnson, Appellants, v. Robert E. WOHLWENDER, Ancillary Adm'r, etc., Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 685

445 S.W.2d 685

EMPIRE METAL CORPORATION and William Richard Johnson, Appellants, v. Robert E. WOHLWENDER, Ancillary Adm'r, etc., Appellee.

Court of Appeals of Kentucky.

Oct. 10, 1969.

Robert E. Ruberg, O'Hara, Ruberg & Cetrulo, Covington, Rendigs, Fry, Kiely & Dennis, Cincinnati, Ohio, for appellants.

G. Wayne Bridges, Bridges & Nelson, Convington, Thomas C. Foster, Cincinnati, Ohio, for appellee.

PALMORE, Judge.

Mary Lou Parsons, age 27, and her son, Bradley Parsons, age 2, passengers in an automobile being driven by Larry Lee Noel, were killed in a collision with a tractor-trailer unit owned by Empire Metal Corporation (hereinafter Empire) and driven by its employe, William Richard Johnson. The accident occurred in Kenton County, Kentucky, on April 26, 1966. Robert E. Wohlwender, as ancillary administrator of both estates, brought this wrongful death action (KRS 411.130) against Empire, Johnson, and the personal representative of Noel (who also was killed in the accident), and obtained a judgment against Empire and Johnson from which they appeal.

Appellants contend the trial court erred to their prejudice in excluding certain evidence and in denying them a trial by jury.

The evidence in question, which the trial court heard by way of avowal, would have established that at the time of their deaths Mary Lou and Larry Lee Noel were living together, with her child, as man and wife, though she was legally married to Robert Dale Parsons; that on June 2, 1966, a court in Virginia entered a judgment purporting to grant Robert Dale Parsons an absolute divorce from Mary Lou, in which judgment (which, of course, being rendered after Mary Lou's death, was utterly void) it was recited that the parties had been separated without cohabitation since August of 1960 and that no children had been born to their marriage; that in 1964 Robert Dale Parsons had been convicted of a felony; and that Robert Dale Parsons did not support Mary Lou or the child.

Most wrongful death statutes provide that damages are to be assessed in accordance with the loss to the surviving beneficiaries. Speiser, Recovery for Wrongful Death, § 3.1, pp. 56--58 (1966). Ours is one of the so-called 'true' wrongful death statutes which have been construed to measure damages by loss to the decedent's estate, although the damages, once recovered, are distributed directly to the statutory beneficiaries. Id., § 3.2, pp. 65--66; KRS 411.130.

Counsel for both sides recognize that this court has consistently held the measure of damages to be the destruction of the decedent's power to earn money. Cf. Spangler's Adm'r v. City of Middlesboro, 301 Ky. 237, 191 S.W.2d 414, 415 (1945). Contending, however, that our precedents in this respect are cases in which the deceased was under a duty of supporting the ultimate beneficiary or beneficiaries of the judgment, appellants argue that they ought to be able to show that Robert Dale Parsons, the surviving husband, actually suffered no pecuniary loss, and that the relationship between him and the wife and child is a circumstance pertinent to that issue.

It seems to us that the statute itself furnishes the answer to this contention, in that it does not provide for any scaling of the recovery on the basis of who the beneficiaries are or what their states of actual or legal dependency, if any, happen to be. For example, if there is no surviving spouse, child or parent, 'then the whole of the recovery shall become a part of the personal estate of the deceased, and after the payment of his debts the remainder, if any, shall pass to his kindred more remote than those above named, according to the law of descent and distribution.' KRS 411.130(e). See Napier's Adm'r v. Napier's Adm'r, 210 Ky. 163, 275 S.W. 379 (1925).

In Freeman v. Oliver M. Elam, Jr. Company, Ky., 372 S.W.2d 796, 798 (1963), holding that the identity of the beneficiaries is 'not material to the issues,' it was pointed out that identifying the beneficiaries as the decedent's seven children 'would have had no effect except possible prejudice against the appellee through sympathy for the children. Objection to such testimony was correctly sustained.' What we have in this case is simply the converse of that situation. Evidence that Parsons, the surviving husband, was a convicted felon and not supporting Mary Lou and the child could have had no effect except to create prejudice against the plaintiff's case.

Other opinions to the same general effect are Chesapeake & O. Ry. Co. v. Reeves' Adm'r, 11 Ky.Law Rep. 14, 11 S.W. 464, 466 (1889); Louisville & N.R. Co. v. Howser's Adm'r, 201 Ky. 548, 257 S.W. 1010, 1014, 36 A.L.R. 327 (1924); Louisville & N.R. Co. v. Smith's Adm'r, 203 Ky. 513, 263 S.W. 29, 32, 35 A.L.R. 1238 (1924); Illinois Cent. R. Co. v. Applegate's Adm'x, 268 Ky. 458, 105 S.W.2d 153, 160 (1937); and Bee's Old Reliable Shows v. Maupin's Adm'x, 311 Ky. 837, 226 S.W.2d 23, 26 (1950).

Under statutes that measure damages by pecuniary loss to the beneficiaries we can well understand that the relations between them and the decedent, and the misconduct of either spouse, are relevant circumstances, but we cannot avoid the conclusion that under our statute the character of Parsons and the relations existing between him and the wife and child are not pertinent to the measure of recovery.

Whether Mary Lou's living in adultery and the child's possible illegitimacy were proper subjects for consideration in determining their respective powers to earn money in the future is a closer question. Ordinarily, evidence concerning the character and habits of the decedent is relevant because they have a bearing on his earning capacity. Louisville & N.R. Co. v. Scott's Adm'r, 188 Ky. 99, 220 S.W. 1066, 1067 (1920). Nevertheless,...