limiting recovery in wrongful-death actions to compensatory damagesSummary of this case from Reber v. Lab. Corp. of Am.
Decided April 5, 1978.
Actions — Damages — Wrongful death action — Punitive damages not available — Compensatory damages proved, when.
APPEAL from the Court of Appeals for Licking County.
The instant cause arose out of a motor-vehicle accident occurring on July 5, 1973, in Licking County between Clair B. Rubecl and George V. Huffman. Huffman, who was driving west on the east-bound lane of State Route 16, collided head-on with Rubeck's automobile. Rubeck was killed in the collision.
In November 1973, plaintiff, Paul I. Rubeck, the executor of Clair Rubeck's estate, instituted an action for damages against the defendant, Huffman. In his amended complaint plaintiff alleged that the collision was caused by Huffman's negligent, reckless, willful and wanton driving and that, as a result of the collision, Clair Rubeck suffered $400 damages to his automobile and severe, painful and ultimately fatal injuries to his person. The amended complaint also set forth a "claim * * * under [R.C.] Section 2125.02" for $97,700 in pecuniary damages for Rubeck's next of kin and demanded $100,000 in exemplary damages. In his answer, defendant admitted that the collision was the the result of his negligence and that Clair Rubeck's death was the result of the collision.
Prior to trial, the defendant moved to limit the issues in the cause to "the amount of compensatory damages due" and to restrict plaintiff from offering evidence of, or commenting on, "the defendant's alleged drinking and/or intoxication on the date of the subject accident." The trial court denied that motion, but allowed the defendant a continuing objection to all such testimony or evidence. Defendant renewed his objection to the evidence of intoxication by moving, at the end of plaintiff's case, to strike all testimony of plaintiff's witnesses with the exception of decedent's brothers. That objection was denied. Later, defendant objected to portions of the court's charge to the jury dealing with punitive damages and with statutes concerning vehicular homicide and driving while under the influence of alcohol. The court subsequently awarded plaintiff compensatory, as well as punitive, damages.
The Court of Appeals modified the judgment, holding that plaintiff had alleged and proved a survivorship as well as a wrongful death cause of action and allocating $500 of the trial court's compensatory damage award and all of its punitive damage award to plaintiff's survivorship claim.
The cause is now before this court upon the allowance of a motion to certify the record.
Mr. John David Jones, Mr. Robert F. Hendricks and Mr. Louis A. Ginocchio, for appellee.
Messrs. Graham Graham, Mr. Thomas R. Bopeley, Messrs. Ross, Davis Baran, Mr. Gregory G. Baran and Mr. Edward C. Baran, for appellant.
The main issue raised herein is whether the trial court erred when it granted, and the Court of Appeals erred when it upheld, an award of punitive damages in the instant cause.
Although the Court of Appeals ruled that punitive damages are not available in wrongful death actions, it affirmed the trial court's award of those damages by finding that, in the instant cause, a survival cause of action had been alleged and evidence sufficient to support "at least nominal damages for pain and suffering" had been introduced at the trial. The appellate court held that "the action which accrued to Clair B. Rubeck at the time of the accident for injuries to his person, for which had he lived he could have sought recovery for both compensatory and punitive damages, survives as to both compensatory and punitive damages in the survivorship action by the executor." It is, therefore, necessary for this court to determine whether punitive damages may be obtained in either a wrongful death action or a cause of action which survives the decedent pursuant to R.C. 2305.21, and whether, if such damages are available in the latter cause of action but not in the former, the plaintiff in the instant cause alleged and proved a cause of action for personal injury or property damage which would survive his death pursuant to R.C. 2305.21.
The right to sue for wrongful death in Ohio is a statutorily created right. (See R.C. 2125.01.) Moreover, it is a right which was not recognized at common law. See Annotation 61 A.L.R. 3d 906, 908; Malone, The Genesis of Wrongful Death, 17 Stanford Law Review 1043, 1044. As such, the rights conferred by the wrongful-death statute are also accompanied by the limitations imposed by that statute. Kennedy v. Byers (1923), 107 Ohio St. 90, 95-96. One such limitation placed on wrongful-death actions in Ohio is on the type of damages which may be awarded. R.C. 2125.02 provides, in pertinent part:
"An action for wrongful death must be brought in the name of the personal representative of the deceased person, but shall be for the exclusive benefit of the surviving spouse, the children, and other next of kin of the decedent. 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, and the reasonable funeral expenses incurred as a result of the wrongful death. * * *" (Emphasis added.)
The language of R.C. 2125.02 is clear. Damages in wrongful-death actions are limited to those for "the pecuniary injury resulting from such death." That is, they are limited to damages for "`loss of money, or something by which money or something of money value may be acquired'" ( Kennedy, supra, at page 92) and "which have been cut off by the premature death of the person from whom they would have proceeded." Karr v. Sixt (1946), 146 Ohio St. 527, paragraph six of the syllabus. Since punitive damages are "assessed over and above that amount adequate to compensate an injured party" ( Ranells v. Cleveland, 41 Ohio St.2d 1, 7), they are, by definition, not available in a wrongful-death action.
See, also, Kent, Damages in Wrongful Death Actions (1968), 17 Clev. Mar. L. Rev. 233.
Since there is no right to punitive damages in a wrongful-death action, the trial court's award of punitive damages in the instant cause is valid only if Clair Rubeck had a right to such damages which survived his death pursuant to R.C. 2305.21. It is established law in this state that one may obtain punitive damages for personal injury or property loss caused by "`intentional, reckless, wanton, willful and gross acts'" or by malice "inferred from conduct and surrounding circumstances." Columbus Finance v. Howard (1975), 42 Ohio St.2d 178, 184. Moreover, the right to such damages continues even when the person so injured has died and the personal injury or property loss claim is pursued by the representative of his estate under R.C. 2305.21. See Fielder v. Ohio Edison Co. (1952), 158 Ohio St. 375; Mahoning Valley Ry. Co. v. Van Alstine (1908), 77 Ohio St. 395. Therefore, if Paul Rubeck alleged and proved that the deceased suffered personal injury or property loss as a result of the collision and before he died, the trial court's award of punitive damages should be upheld.
R.C. 2305.21 provides:
"In addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto."
Upon an examination of the record, this court finds that the plaintiff did not prove that Clair Rubeck, as a result of the collision, suffered property loss or personal injury before he died. No evidence that the car driven by the decedent was owned by him was presented at the trial. Furthermore, there was no evidence indicating that he survived the collision to experience pain and suffering before the first policeman, arriving from four miles away, found him to be dead. We therefore reverse the trial court's award of $20,000 in punitive damages.
The absence of testimony as to pain and suffering in the instant cause is in marked contrast to evidence of at least partially conscious suffering which this court found to be sufficient basis for an action for personal injury in Flory v. New York Central Rd. Co. (1959), 170 Ohio St. 185.
This court having found that plaintiff failed to prove that the decedent suffered property loss or personal injury, we do not find it necessary to address the questions of whether Huffman's driving at the time of the accident constituted wanton or malicious conduct or whether the plaintiff properly alleged a cause of action which survives under R.C. 2305.21.
The last issue raised by the instant cause is whether the trial court's award of $20,000 in pecuniary damages is supported by the evidence. If such evidence exists, plaintiff and his brothers qualify as beneficiaries under R.C. 2125.02 because they are the deceased's next of kin. (See Karr, supra, at page 527.)
Although collateral kindred with no legal claim on a decedent are not presumed to have suffered pecuniary loss, if evidence of such loss is introduced at trial, they are eligible for pecuniary damages. Karr, supra, paragraph five of the syllabus. In Ohio, as in the majority of jurisdictions, such loss may be evidenced by testimony that the deceased rendered financial support or services to those collateral kindred. Karr, supra; Annotation 31 A.L.R. 3d 379, 386. Indeed, under Ohio law those services have included farm chores ( Karr, supra) and household work ( Blasky v. Wheatley Trucking, Inc. [C.A. 6, 1973], 482 F.2d 497).
The Blasky court affirmed an award of $100,000 in pecuniary damages to a husband and the grown children of a deceased who performed household chores for both her spouse and her children and who had a 14-year life expectancy.
The record in the instant cause reveals that, when Clair Rubeck died (1) he had a life expectancy of 23 years; (2) he was earning approximately $12,000 a year; (3) he contributed $100 a month and five hours a week gardening and doing household work to defray the expenses of, and insure the daily operation of, the home shared by himself and his brother Paul; and (4) he worked, without compensation, an average total of 18 hours a week of labor as a manual laborer and handyman on three farms owned wholly or in part by certain of his brothers.
This court having been presented with the testimony that the deceased provided financial support and services to his brothers — especially the testimony concerning the uncompensated services performed by him on the farms and around the home — we find the jury award of $20,000 to be supported by the evidence.
Since the evidence supports the jury's award of compensatory damages and since the plaintiff failed to establish a cause of action giving rise to punitive damages, we affirm the trial court's award of $20,000 in compensatory damages and reverse the courts below with regard to the remainder of the damages. The judgment of the Court of Appeals is affirmed in part and reversed in part.
Judgment affirmed in part and reversed in part.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, SWEENEY and LOCHER, JJ., concur.
P. BROWN, J., concurs in the judgment only.