Kennedy v. Byers

• Decision Date: 20 February 1923
• Docket Number: 17311
• Parties: Kennedy, Admr., Etc., v. Byers.
• Court: Ohio Supreme Court

140 N.E. 630

107 Ohio St. 90

Kennedy, Admr., Etc., v. Byers.

No. 17311

Supreme Court of Ohio

February 20, 1923

Wrongful death - Right of action and damages - Sections 10770 and 10772, General Code - Recovery limited to pecuniary losses - Charge to jury - Loss of society, comfort and protection.

1. An action brought to recover damages for wrongful death is authorized by the provisions of Section 10770, General Code and the right thereby conferred carries with it the limitation imposed by Section 10772, General Code. Such limitation was not repealed or annulled by the adoption of Section 19, Article I of the state constitution.

2. In such case, damages which may be recovered are limited to the pecuniary loss sustained by the beneficiaries and do not include such elements as bereavement, or mental pain and suffering of the beneficiaries, or the loss of the society or comfort of the deceased.

3. An instruction to the jury in a case wherein damages are sought for the death of a child ten years of age, that "The jury may take into account any pecuniary injury from loss of society, comfort and protection which may apply alike to all beneficiaries," is erroneous and prejudicial.

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This action was brought in the court of common pleas of Franklin county by the administrator to recover damages for alleged wrongful death of John P. Kennedy, ten years of age, who left as his heirs and next of kin his father and mother, three brothers and two sisters. A verdict was returned for the plaintiff, upon which judgment was rendered. Error was prosecuted to the court of appeals, which court reversed the judgment because of language used by the trial court in instructing the jury, as follows: "The jury may take into account any pecuniary injury from loss of society, comfort and protection which may apply alike to all beneficiaries." Error is not prosecuted in this court to procure a reversal of the judgment of the court of appeals.

Messrs Crabbe & Johnson; Mr. F. S. Monnett and Mr. F. J Hoster, for plaintiff in error.

Messrs Wilson & Rector and Messrs. Squire, Sanders & Dempsey, for defendant in error.

MATTHIAS J.

This action is based upon the provisions of and is authorized by Sections 10770 and 10772, General Code. Such action did not lie at common law. "By the common law all right of action for personal injury, whether it be the cause of death or not, is extinguished by the death of the injured party; the cause of action dies with the person entitled to sue. * * * The common-law rule has been abrogated by statutes in all or nearly all the states of the Union as well as in England. These provide that compensation may be recovered for the injury or pecuniary loss resulting from the death of a person, caused by the wrongful act or negligence of another." (5 Sutherland on Damages [4 ed.], Section 1259.) The statutes of the various states are substantially similar to and generally follow the language of the English law known as Lord Campbell's act. We are, therefore, called upon to examine the provisions of the sections of the statute above cited. It is there provided that "When the death of a person is caused by wrongful act, neg- lect or default such as would have entitled the party injured to maintain an action and recover damages in respect thereof, if death had not ensued, the corporation which, or the person who would have been liable if death had not ensued * * * shall be liable to an action for damages, notwithstanding the death of the person injured * * *. Such actions shall be for the exclusive benefit of the wife, or husband, and children, or if there be neither of them, then of the parents and next of kin of the person whose death was so caused. It must be brought in the name of the personal representative of the deceased person and the jury may give such damages as it may think proportioned to the pecuniary injury resulting from such death, to the persons, respectively, for whose benefit the action was brought."

It is to be observed that by the provisions of these sections, which authorize the bringing of such an action, the damages recoverable therein are limited to "the pecuniary injury resulting from such death." Such limitation has been quite generally recognized, and there are few exceptions to the rule, or to the application thereof, that in such cases the only recompense which can be required under the statute is that for pecuniary loss, which is defined in Bouvier's Law Dictionary as "A loss of money, or something by which money or something of money value may be acquired." This rule was recognized and applied by the supreme court of Illinois in the case of Illinois Central Rd. Co. v. Baches, Admr., 55 Ill. 379, where it was held that "In an action under the statute to recover for the death of a person caused by the wrongful act, neglect or default of the defendant, the only question to be determined in estima- ting the damages is the pecuniary loss resulting from his death to the widow and next of kin of such deceased person."

In the statement of this general rule it is said in 5 Sutherland on Damages (4 ed.), Section 1263: "There is almost entire harmony in denying a recovery for the mental suffering of the beneficiaries of the deceased, or as a solatium." Under the statutes of some states, however, the wounded feelings, mental pain and suffering of the beneficiaries, and loss of comfort, society, etc., may be considered in awarding damages. Under the statutes of other states the word "damages" is not qualified or limited. In those states, however, where the word "damages" is limited by statute by the word "pecuniary" the award cannot go beyond the pecuniary or money loss sustained by the beneficiaries. As further stated by Sutherland in Section 1264: "The main inquiry is, what is the pecuniary loss to those persons for whose benefit in a particular case the action is brought? What aid or advantage, having a pecuniary value, have these persons lost by reason of the death?"

Among the many decisions of the courts of last resort which may be cited upholding the doctrine above stated are Wales v. Pac. Elec. Motor Co., 130 Cal. 521; Texas &amp N. O. Rd. Co. v. Green, 42 Tex. Civ. App., 216, and International & G. N. Rd. Co. v. Glover (Tex.), 88 S.W. 515. The supreme court of the United States has dealt with this question in a number of cases, among them being American Rd. Co. of Porto Rico v. Didricksen, 227 U.S. 145, and Michigan Central Rd. Co. v. Vreeland, 227 U.S. 59. In the former case the court said on page 149: "The cause of action which was created in behalf of the injured employe did not survive his death, nor pass to his representatives. But the act, in case of the death of such an employee from his injury, creates a new and distinct right of action for the benefit of the dependent relatives named in the statute. The damages recoverable are limited to such loss as results to them because they have been deprived of a reasonable expectation of pecuniary benefits by the wrongful death of the injured employee. The damage is limited strictly to the financial loss thus sustained. * * * The loss of the society or companionship of a son is a deprivation not to be measured by any money standard. It is not a pecuniary loss under such a statute as this." In the latter case the court held: "This liability is for pecuniary damage only, and the statute should be construed in this respect as Lord Campbell's Act has been construed, not as granting a continuance of the right the injured employee had, but as granting a new and independent cause of action." And the court says at page 71: "A pecuniary loss or damage...