Prem v. Cox, 81-1734

• Citation: 2 Ohio St.3d 149,443 N.E.2d 511,2 OBR 694
• Decision Date: 05 January 1983
• Docket Number: No. 81-1734,81-1734
• Parties: , 2 O.B.R. 694 PREM, Admr., Appellant, v. COX; Davis, Appellee.
• Court: Ohio Supreme Court

Page 149

2 Ohio St.3d 149

443 N.E.2d 511, 2 O.B.R. 694

PREM, Admr., Appellant, v. COX; Davis, Appellee.

No. 81-1734.

Supreme Court of Ohio.

Jan. 5, 1983.

Syllabus by the Court

The doctrine of interspousal immunity does not bar an action for wrongful death brought by the estate of a deceased against the surviving spouse.

On March 6, 1977, Sandra G. Davis was killed in an accident when the automobile in which she was riding as a passenger collided with another vehicle. Appellant, the administrator of Sandra Davis' estate, an attorney, brought this wrongful death action against appellee, Steven Davis, the decedent's husband, who was driving the automobile in which the decedent was riding at the time of the fatal accident, and Darlene K. Cox, the driver of the other vehicle.

Appellee filed a motion for summary judgment, based upon the doctrine of interspousal immunity and accompanied by an affidavit stating that he was married to the decedent at the time of the accident. The Court of Common Pleas of Butler County granted appellee's motion ¹ and the court of appeals affirmed.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Holbrock, Jonson, Bressler & Houser, George N. Jonson and Timothy R. Evans, Hamilton, for appellant.

Baden, Jones, Scheper & Crehan Co., L.P.A., David H. Landis and James H. Scheper, Hamilton, for appellee.

FRANK D. CELEBREZZE, Chief Justice.

The issue presented is whether the doctrine of interspousal immunity applies in this wrongful death action. For the reasons which follow, we hold that the doctrine of interspousal immunity does not bar an action for wrongful death brought by the estate of a deceased spouse against a surviving spouse.

The appellee argues that the doctrine of interspousal immunity and R.C. 2125.01 preclude a wrongful death action in this situation. The statute provides in pertinent part:

"When death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued * * *."

Although this conditional language could be interpreted to mean that since the decedent, because of interspousal immunity, could not have recovered damages for personal injuries if she had survived, a wrongful death action is similarly precluded. However, we do not believe such a construction was intended or required.

The purpose of R.C. Chapter 2125 is to create a cause of action by which those who have sustained a loss due to a wrongful death may recover pecuniary damages. In construing a similar wrongful death statute, the Supreme Court of Michigan stated that "[w]e must never lose sight of the fact that the legislature under the wrongful death act sought to impose liability in case of the death of a person by the wrongful act of another." Mosier v. Carney (1965), 376 Mich. 532, 564, 138 N.W.2d 343. Thus, we consider whether the conditional language in R.C. 2125.01 should be construed to preclude recovery because of the doctrine of interspousal immunity in light of the purpose of providing a wrongful death cause of action.

Although the tortious act may give rise to a cause of action by the injured, it also is the basis for a wrongful death action by the personal representative of the decedent. An action by an administrator to recover damages for the wrongful death of the decedent and an action instituted by the decedent in his lifetime to recover damages for his injuries are "maintained under separate and independent rights * * *." Gorman v. Columbus & Southern Ohio Elec. Co. (1945), 144 Ohio St. 593, 597, 60 N.E.2d 700 . Wrongful death is a new cause of action distinct and apart from the right of action which the injured person may have had. Karr v. Sixt (1946), 146 Ohio St. 527, 67 N.E.2d 331 , paragraph one of the syllabus; Koler v. St. Joseph Hosp. (1982), 69 Ohio St.2d 477, 432 N.E.2d 821 . R.C. 2125.02 creates a right for those who suffer pecuniary loss by virtue of the decedent's wrongful death. Therefore, the action has its derivation from the tortious act and not from the person of the deceased.

Although interspousal immunity may be asserted in the case sub judice to protect the husband from liability in a suit by his injured wife, Bonkowsky v. Bonkowsky (1982), 69 Ohio St.2d 152, 431 N.E.2d 998 , the negligent driving continues to be a tortious act and can support an action in favor of other parties free from the immunity. There is no reason why the relationship of the tortfeasor to the injured person should preclude recovery in a wrongful death action. Interspousal immunity is personal and does not inhere to the tort itself. Deposit Guar. Bank & Trust Co. v. Nelson (1951), 212 Miss. 335, 347, 54 So.2d 476. As aptly stated by the Supreme Court of Washington, "[t]he wife's personal disability necessarily disappears with her death, and hence is not transferable to the personal representative, who has a new cause of action." Johnson v. Ottomeier (1954), 45 Wash.2d 419, 424, 275 P.2d 723.

Because the wrongful death action is not brought for the benefit of the decedent, any personal immunity existing solely because of the marital relationship should not be included in the conditional clause of R.C. 2125.01. The court reached a similar conclusion in Nelson, supra, 212 Miss. at page 347, 54 So.2d 476:

" * * * [T]he stated condition in the statute has no reference to the person entitled to sue but only to the sufficiency of the circumstances attending the injury and the nature of the wrongful act. That is, the defendant must be chargeable with a wrongful act."

Construing a wrongful death statute, similar to Ohio's, the Supreme Court of Indiana concluded that: " * * * [T]he Legislature never intended to write into the Wrongful Death statute the defense of interspousal immunity by the use of the qualifying phrase above referred to. To hold otherwise would, in cases such as this, defeat the very purpose of the statute by denying recovery to those suffering the loss. Further, all justifications advanced for the application of the interspousal immunity doctrine cease upon the death of one of the marriage partners." In re Estate of Pickens (1970), 255 Ind. 119, 127-128, 263 N.E.2d 151. We conclude that the conditional clause in R.C. 2125.01 refers to the facts and circumstances giving rise to the cause of action, rather than to the person by whom the action may be maintained.

This conclusion is supported by the fact that the public policy reasons underlying the doctrine of interspousal immunity lose whatever force they might otherwise have had after the marriage has terminated by the death of one of its partners. Fraud and collusion are unlikely to occur when one spouse is dead and the action is brought by the legal representative of that person's estate. Furthermore, there is no marital peace and harmony to be preserved. It is not realistic to maintain that insurance companies are tactically disadvantaged in this situation. Thus, the reasons for the immunity are irrelevant to a wrongful death action. The doctrine should be confined to cases supported by the traditional justifications.

It is fundamental to our legal system that one may seek redress for a substantial wrong. In a wrongful death action, the General Assembly creates a remedy by allowing a suit for recovery of damages caused by a negligent driver. Parrish v. Walsh (1982), 69 Ohio St.2d 11, 429 N.E.2d 1176 . Similarly, the estate of a deceased spouse should be able to seek recovery as there is no reason to impose the doctrine of interspousal immunity as a bar solely because the tortfeasor happens to have been married to the decedent.

We do not believe that the General Assembly intended to impose the interspousal immunity doctrine in this situation where its existence is without reasonable justification. As this court has often stated, "[t]he General Assembly will not be presumed to have intended to enact a law producing unreasonable or absurd consequences. It is the duty of the courts, if the language of a statute fairly permits or unless restrained by the clear language thereof, so to construe the statute as to avoid such a result." Canton v. Imperial Bowling Lanes (1968), 16 Ohio St.2d 47, 242 N.E.2d 566 , paragraph four of the syllabus.

Therefore, we do not believe that the conditional phrase in R.C. 2125.01 precludes appellant's action. We join other jurisdictions which have similarly interpreted comparable statutory language. See Pickens, supra; Welch v. Davis (1951), 410 Ill. 130, 101 N.E.2d 547; Mosier, supra; Shumway v. Nelson (1961), 259 Minn. 319, 107 N.W.2d 531; Kaczorowski v. Kalkosinski (1936), 321 Pa. 438, 184 A. 663; and Deposit Guar. Bank & Trust Co. v. Nelson, supra. Thus, the doctrine of interspousal immunity does not bar an action for wrongful death brought by the estate of a deceased spouse against the surviving spouse.

Accordingly, the judgment of the court of appeals is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.

Judgment reversed and cause remanded.

WILLIAM B. BROWN, SWEENEY and CLIFFORD F. BROWN, JJ., concur in the syllabus and judgment only.

LOCHER, HOLMES and KRUPANSKY, JJ., dissent.

WILLIAM B. BROWN, Justice, concurring.

It is my strong belief that interspousal immunity is an outmoded, ineffective, anachronistic and unconstitutional doctrine. Based on the reasons set forth in my dissenting opinions in Varholla v. Varholla (1978), 56 Ohio St.2d 269, 271, 383 N.E.2d 888 , and Bonkowsky v. Bonkowsky (1982), 69 Ohio St.2d 152, 155, 431 N.E.2d 998 , I would hold that the doctrine of interspousal immunity...