Keaton v. Ribbeck

• Decision Date: 20 June 1979
• Docket Number: No. 78-1321,78-1321
• Citation: 12 O.O.3d 375,58 Ohio St.2d 443,391 N.E.2d 307
• Parties: , 12 O.O.3d 375 KEATON, Admr., Appellant, v. RIBBECK, Appellee.
• Court: Ohio Supreme Court

Page 443

58 Ohio St.2d 443

391 N.E.2d 307, 12 O.O.3d 375

KEATON, Admr., Appellant, v. RIBBECK, Appellee.

No. 78-1321.

Supreme Court of Ohio.

June 20, 1979.

Bryan P. Keaton was a passenger in an automobile driven by the appellee, Donald L. Ribbeck, on April 13, 1974, when, at approximately 11:30 p. m., the automobile crashed into a moving freight train. Bryan Keaton, who was 17 years of age at the time, was killed by the impact.

Appellant, as administrator of the deceased's estate, brought a wrongful death action against appellee in the Court of Common Pleas of Medina County, alleging that appellee caused the death of Bryan P. Keaton by negligently operating the automobile into the train. The action was brought on behalf of Bryan D. Keaton, father of the deceased; Marilyn L. Keaton, the deceased's mother; Timothy M. Keaton, his brother; and Debra A. and Susan J. Keaton, his sisters.

The fourth cause of action set forth in the second amended complaint filed by appellant sought recovery for the loss of society, comfort and companionship of the decedent on the ground that such losses constitute a "pecuniary injury" as that term is used in R.C. 2125.02. Alternatively, the fourth cause of action claimed relief in that failure to consider such losses as an item of damages constitutes a denial of rights, subsequently identified by appellant as the right to equal protection, under both the United States and Ohio Constitutions. The fifth cause of action of the complaint sought similar relief on the ground that, in addition to the statutory remedy, there is a common-law action for wrongful death which includes damages for loss of the decedent's society, comfort and companionship.

The trial court struck the fourth and fifth causes of action, pursuant to defendant's motion, for failure to state a claim upon which relief could be granted. Judgment was affirmed on appeal.

This cause is now before this court upon allowance of a motion to certify the record.

Komito, Nurenberg, Plevin, Jacobson, Heller & McCarthy Co., L. P. A., John J. McCarthy and Harlan M. Gordon, Cleveland, for appellant.

Jeffries, Kehn & Largent and Jeffrey W. Largent, Cleveland, for appellee.

PER CURIAM.

In his first proposition of law appellant asks this court to expand the meaning of "pecuniary injury" in R.C. 2125.02, ¹ one of this state's wrongful death provisions, beyond the definition set forth in Karr v. Sixt (1946), 146 Ohio St. 527, 67 N.E.2d 331, to permit recovery of damages for loss of society, comfort and companionship of the decedent. In paragraph six of the syllabus in Karr, this court stated:

" The term 'pecuniary injury' as used in Section 10509-167, General Code, ² comprehends essentially injury measured by the prospective advantages of a pecuniary nature which have been cut off by the premature death of the person from whom they would have proceeded. The term does not embrace such elements as bereavement or mental pain and suffering of the beneficiaries or the loss of the society or comfort of the deceased. (Kennedy, Adm'r v. Byers, 107 Ohio St. 90, 140 N.E. 630, approved and followed.)"

We are bound by this precedent construing "pecuniary injury" in accordance with the legislative intent at the time of the statute's enactment. Miller v. Fairley (1943), 141 Ohio St. 327, 48 N.E.2d 217. The General Assembly's re-enactment of this statute following Karr corroborates this construction. Gaither v. Lager (1954), 2 Ill.2d 293, 118 N.E.2d 4; see footnote two, Supra. If the law should be changed, the change should come from the General Assembly.

Appellant also challenges the constitutionality of R.C. 2125.02, as construed pursuant to Karr, under the Equal Protection Clauses of the United States and Ohio Constitutions. In accordance with this court's consistent adoption of federal standards in construing Ohio's Equal Protection Clause, Porter v. Oberlin (1965), 1 Ohio St.2d 143, 205 N.E.2d 363; State ex rel. Strubel v. Davis (1937), 132 Ohio St. 555, 9 N.E.2d 684, the applicable test under both constitutional provisions is whether the state, by its enactment of R.C. 2125.02, has imposed differential treatment upon similarly situated classes of individuals, which treatment cannot be rationally justified by a conceivable, legitimate state interest. Williamson v. Lee Optical Co. (1955), 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563.

Appellant argues specifically that it is a denial of equal protection to award a spouse damages for loss of society, comfort and companionship, elements of lost consortium, for non-fatal injuries to the spouse's marital partner, yet not allow recovery of such damages where death results. Since the instant cause involves the death of an unwed minor, however, the more accurate inquiry should be whether parents and siblings of a non-fatally injured child are entitled to recover these damages and, if so, can the failure to award these same damages for wrongful death serve any conceivable, rational purpose.

Appellant has not cited, nor has our research discovered, any decisions of this court where loss of society, companionship and comfort of a child was permitted to be considered by a jury in assessing damages. Those cases which do discuss damages recoverable for negligent injury to a minor disregard these losses. See, E. g., Grindell v. Huber (1971), 28 Ohio St.2d 71, 275 N.E.2d 614; Whitehead v. Genl. Tel. Co. (1969), 20 Ohio St.2d 108, 254 N.E.2d 10. Since the law does not distinguish between the right to recover damages for the lost society of an injured child and a fatally injured child, there is no basis upon which an equal protection challenge may be premised. Appellant's constitutional objection is, accordingly, not well taken.

In his third proposition of law appellant urges this court to find a common law action for wrongful death, in addition to the statutory remedy provided for in R.C. Chapter 2125, which would permit the recovery of damages for lost society, comfort and companionship.

In the second paragraph of the syllabus in Karr, supra (146 Ohio St. 527, 67 N.E.2d 331), this court held that the wrongful death statute "is an innovation to the principles of the common law and affords the only civil remedy to compensate others for death resulting from injuries." This proposition is no less true today than it was at the time Karr was authored. Appellant's contention is without merit.

For the reasons preceding, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

HERBERT, WILLIAM B. BROWN, PAUL W. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.

CELEBREZZE, Chief Justice, dissenting.

R.C. 1.11 is an expression of legislative intent that all remedial laws, epitomized by the one before us today, "be liberally construed in order to promote their object and Assist the parties in obtaining justice." (Emphasis added.) In order to obtain an equitable result the definition of "pecuniary injury" in R.C. 2125.02 should be given an expanded construction to allow recovery for the loss of a decedent's society, comfort, and companionship.

When the decision in Kennedy v. Byers (1923), 107 Ohio St. 90, 140 N.E. 630, was handed down construing the predecessor to R.C. 2125.02, the court relied upon a definition of "pecuniary injury" which, at the time, was prevalent in most other jurisdictions. However, the precedent relied upon for denying recovery for loss of companionship had its roots in a social and economic perspective that reached back into the Nineteenth Century. The Ohio Wrongful Death Statute under scrutiny in Byers, supra, like most other state wrongful death enactments, was "substantially similar to and generally follow(ed) the language of the English law known as Lord Campbell's act." Id., at page 91, 140 N.E.2d...