Keaton v. Ribbeck

391 N.E.2d 307, 58 Ohio St. 2d 443, 12 Ohio Op. 3d 375, 1979 Ohio LEXIS 456

• Court: Ohio Supreme Court
• Decided: June 20, 1979
• Docket: No. 78-1321
• Status: Published

Opinions

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, 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, Admr., v. Byers, 107 Ohio St. 90, approved and followed.)”

We are bound by this precedent construing “peeuni-ai'V injury” in accordance with the legislative intent at the time of the statute’s enactment. Miller v. Fairley (1943), 341 Ohio St. 327. 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 K. 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; State, ex rel. Strubel, v. Davis (1937), 132 Ohio St. 555, the applicable test under both constitutional provisions is whether the state, by its enactment of E. 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.

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, vet not allow recovery of such damages where death resuits. 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. Those1 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; Whitehead v. Genl. Tel. Co. (1969), 20 Ohio St. 2d 108. 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), 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.

HeRbeet, W. Brown, P. Brown, Sweeney, Locher and Holmes, JJ., concur.

1 The relevant portion of R. C. 2125.02 provides, as follows:

* * The Jury may give such damages as it thinks proportioned to the pecuniary injury resulting from such death to the persons, respectively, for whose benefit the action was brought * * (Emphasis added.)

2 G. C. 10509-167 was the predecessor to R. G. 2125.02 which was last amended effective November 21, 1969. Under this amendment recoverable damages were expanded to include reasonable funeral expenses. Otherwise, R. C. 2125.02 remains essentially the same as the prior provision.