Opinion
No. 70-287
Decided February 3, 1971.
Negligence — Damages — Loss of consortium — Not recoverable in independent action by wife, when — Instantaneous death of spouse.
A wife does not have an independent cause of action for loss of consortium against a person whose negligence caused her husband's instantaneous death. ( Shaweker v. Spinell, 125 Ohio St. 423, followed.)
CERTIFIED by the Court of Appeals for Summit County.
The appellant filed a petition in the Summit County Court of Common Pleas on November 6, 1968, alleging, in essence, that on November 20, 1964, her husband was killed in a vehicular collision with the appellee's tractor-trailer. Appellee's servant had allegedly parked the truck, without lights or other warning devices, in the right-hand traffic lane of an interstate highway. The appellant alleged further that, as the result of her husband's death, she had expended funds for funeral and other expenses, and had suffered the loss of her husband's services, companionship, and consortium.
The petition did not contain an allegation that the decedent husband survived for any instant of time between the occurrence of the injury and his death, and neither the petition nor the prayer included or sought any sum for funeral expenses.
Appellee's demurrer to the petition was sustained by the trial court and the petition was dismissed. In affirming that judgment, the Court of Appeals relied upon the rule enunciated in Smith v. Nicholas Building Co. (1915), 93 Ohio St. 101, 112 N.E. 204 (subsequently overruled in Clouston v. Remlinger Oldsmobile Cadillac, Inc., 22 Ohio St.2d 65, 258 N.E.2d 230), that a wife has no right of action against another for the loss of her husband's consortium as the result of personal injuries negligently inflicted upon him.
On April 17, 1970, the Court of Appeals determined that its judgment was in conflict with judgments pronounced upon the same subject in Leffler v. Wiley (1968), 15 Ohio App.2d 67, 239 N.E.2d 235, and Durham v. Gabriel (1968), 16 Ohio App.2d 51, 241 N.E.2d 401, and granted appellant's motion to certify the record to this court for review and final determination of the question concerning appellant's right to an independent action for loss of consortium.
This court announced its decisions in Clouston v. Remlinger Oldsmobile Cadillac, Inc., supra, and Durham v. Gabriel (1970), 22 Ohio St.2d 75, 258 N.E.2d 236, on April 22, 1970.
Mr. George N. Plavac, for appellant.
Messrs. Wise, Roetzel, Maxon, Kelly Andress and Mr. Dale O. Cox, for appellee.
The issue presented is whether a wife has an independent action for the loss of her husband's consortium against a person whose negligence caused her husband's instantaneous death.
In Clouston v. Remlinger Oldsmobile Cadillac, Inc., supra, we held that the negligent injury of a husband gives rise to a cause of action in favor of his wife for any loss of his consortium which directly and proximately results from such injury. While that decision equalized the rights of a husband and a wife to bring an action for loss of consortium, it did not affect the logical import of Shaweker v. Spinell (1932), 125 Ohio St. 423, 181 N.E. 896, that a spouse may recover only for loss of consortium between the time of injury and death, and did not alter the pleading requirements contained in the second paragraph of the syllabus in that case.
The question concerning loss of consortium being the sole issue certified for review, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., SCHNEIDER, DUNCAN, STEPHENSON. STERN and LEACH, JJ., concur.
STEPHENSON, J., of the Fourth Appellate District, sitting for CORRIGAN, J.