
    Common Pleas Court of Montgomery County.
    Harry, Admr., v. Seibel.
    Decided November 13, 1931.
    
      Elliff & Miller, attorneys for plaintiff.
    
      Thomas, Hyers & Leland, attorneys for defendant.
   Snediker, J.

This case is now before the court for the reconsideration of a decision rendered herein in which the court expressed itself with reference to the recovery by the plaintiff administrator of $483 funeral expenses which he, as husband, was compelled to pay in the burial of his wife.

In an opinion rendered on the 31st day of October the court said: “We do not think, however, that the statement that the widower paid $483 funeral expenses has any place in the case. It can have no effect upon the verdict of the jury and the plaintiff would not be entitled to offer proof of that fact at the trial.”

The action is one for the recovery of damages to the husband and an adopted son and daughter arising from the death of the wife caused by a wrongful act committed by the defendant. The plaintiff administrator brings his suit under favor of Section 10770 et seq., of the General Code, which, so far as is necessary, for our purposes, reads as follows:

“Section 10770. When the death of a person is caused by wrongful act, neglect, or default, such as would have entitled the party injured to maintain an action to recover the 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, or the administrator or executor of the estate of such -person, as such administrator or executor, shall be liable in an action for damages notwithstanding the death of the person injured * *
“Section 10772. 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 proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit the action was brought * * *.
“The amount received by such personal representative, whether by settlement or otherwise, shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making the appointment, in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiaries and the laws of descent and distribution of personal estates left by persons dying intestate

The first legislative provision of this kind which appeared in the revised statutes of Ohio was passed March 25, 1851, and is found on page 1139-40 of Swan & Critchfield, published in 1860. The provision there with regard to the amount of recovery was found in Section 2 of that act and reads:

“Every such action shall be brought by and in the name of the personal representatives of such deceased persons, .and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal estates left, by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just, not exceeding $5,000 with reference to the pecuniary injury • resulting from such death, to the wife and next of kin to such deceased person * *

At common law — and here we refer to the decisions of the English courts, as an example of which we quote from Lord Ellenborough’s opinion in Baker v. Bolton — the rule is as follows:

“in a court the death of a human being cannot be complained of as an injury.”

In 1846 the English statute, known as Lord Campbell’s Act, was passed which provided for compensation to families of persons killed by accident. Like statutes were subsequently passed by almost all of the states of this Union, of which the act which we have quoted from Swan & Critchfield is an example. It has been said with reference to these statutory provisions that,

“These acts do not repeal nor create an exception of the common law. A totally new action is given against the person who would have been responsible to the deceased if the deceased had lived — an action which * * * is new in its species, new in its quality, new in its principle, and in every way.new, and which can be brought by a person answering the description of the widow, parent, or child, who under such circumstances has suffered pecuniary loss.”

In Ohio, the action is prosecuted in the name of the administrator of the deceased for the benefit of the wife or husband and children or next of kin.

These enactments differ in some .respects in the several states, which, of itself, would lead to a contrariety of opinion with respect to any question raised where the difference occurred. Generally speaking, however, they are to the same effect as the Ohio law and furnish a like remedy.

After the passage of Lord Campbell’s Act it was interpreted by the English courts as such interpretations became necessary, and it was held (referring to the case of Dalton v. Southeastern Railroad, 4 English Common Bench Reports, page 296) that it was not competent for a jury to award compensation for the expenses incurred for a funeral.

The question we have here was before the District Court of the United States in the case of Holland v. Brown et al, 35 Federal Reporter, page 43, and it was there decided that,

“The damages given to an administrator for the death of his intestate by the statute of Oregon are, when recovered, assets of the estate. They do not include anything but what is consequent on the death, and therefore no allowance can be made for the expenses of the illness attendant on the injury which caused the death or for the burial of the deceased,”

This is a very well considered opinion, and in the body of it the court say:

“I do not think anything can be allowed in this suit for these expenses (funeral and other expenses) — at least as such. True, they are the result of the wrongful conduct of the defendants which caused the death of the deceased, but the action given by the statute is for death simply. This includes, of course, all such losses to his estate or creditors and next of kin, to whom it belongs and for whose benefit the action is allowed, as may thoroughly be implied from the cessation of his life. The fact on which the damages are computed is death and its consequences, and not its antecedents or cause. And yet it is manifest that the estate of the decedent is injured or diminished by these expenses. The damages allowed in this case must first be applied by the administrator to the payment of what will be found justly due the creditors of the estate on this account. For this reason it might be proper and convenient to have the probable question of these expenses considered in estimating the general damages ; but as the statute, in my judgment, does not authorize the recovery of damages on any such account the claim must be rejected.”

In the case of Gay v. William, Winter et al, 34 California Reports, page 153, the court made the statement that:

“In an action under the statute for causing by wrongful act the death of a person, funeral expenses are not recoverable except as special damages, if recoverable at all, and must be specially pleaded.”

Segwick, in the second volume of his work on Damages, at page 203, Section 573, says:

“The statute contemplates compensation to the widow, next of kin, etc. from the death, not for the injuries to the deceased from the wrongful act. And thus damages for the mental and physical sufferings' of the deceased cannot be recovered under the statute. The same reasoning leads to the conclusion that expenses for medical attendance, funeral expenses, etc. are not proper items of damages under the statute; although in this country, generally, the medical expenses and the funeral expenses attendant úpon the burial of the deceased may be recovered where any of those for whose benefit the action is brought are legally bound to pay such expenses.”

In Ruling Case Law, Vol. 8, page 826, the general rule for the measure of damages in cases of this character is stated to be:

“The measure of damages under most of the statutes giving a right of recovery for the wrongful death of a person is the present value or reasonable expectations of pecuniary advantage to those entitled to recover and which they have lost by his death; or, as it is sometimes expressed, it is the amount of pecuniary assistance and support which they might reasonably have expected to receive from the deceased had he lived. The measure of damages in such case is the present value of the net income ascertained by deducting the cost of living and usual expenditures from the gross income; and no more can be allowed than the present value or accumulation arising from such net income, based upon the expectancy of life. It is the injury to the survivors entitled to sue and not the value of the life lost that forms the basis of damages; and, generally speaking, the extent of the loss should not be measured by the wealth or poverty of the recipient or giver, but by his earnings, care, health, beneficient and pecuniary contributions given or in reasonable expectation of being given to the survivors as shown by the proof and judged from all the circumstances of the case to be just.”

And, again, on page 837:

“It is usually held that any expenses incurred by the parent for nursing and medical attendance before the death of the child and also the funeral expenses are proper elements of estimate in ascertaining the damages for the wrongful death of the child; but in some jurisdictions it has been held that neither at common law nor under Lord Campbell’s Act, or statutes based thereon, can the parent recover the expenses of the child’s funeral.”

In the 54 Missouri, at page 285, the court said:

“Also the funeral expenses of the child are a part of the damages.”

In the 71 Missouri, at page 164, it was held that funeral expenses might be recovered.

In the 29 South Carolina, at page 303, it was held :

“The payment of funeral expenses of the deceased properly constitutes an element of the amount of damages.”

In the 43 New York, at page 45, the court said:

“In an action under the statute, to recover damages for negligence causing death, the necessary funeral expenses of the deceased are proper items of damage where any of those for whose benefit the action is brought are legally bound to pay such expenses, and proof thereof is therefore competent.”

The chief justice dissented.

The authorities from which we have quoted show the general rule and also show a variance of opinion with respect to the particular item of damages (funeral expenses) which is here in question.

There is one case in Ohio which discusses the propriety of allowing such expenses as part of the damages recoverable under the Code. We refer to the case of the Cincinnati, Hamilton & Dayton Railway Co. v. Walter F. Taylor, found in the 3 O. L. R. at page 30. This case was decided by the Hamilton County Circuit Court, Judges Giffen, Jelke, and Swing sitting. The Court said:

“There was no error in admitting testimony as to the funeral expenses, as they constituted a part of the pecuniary loss of the plaintiff and could not be recovered by the administrator of the deceased in an action commenced by him under Section 6134, Revised Statutes.”

Section 6134, Revised Statutes, is the old section number of the code provision which we are now considering. The action in the Hamilton County Circuit Court was brought by the plaintiff individually. They decided that he could recover in his individual action for funeral expenses caused by the negligence of the plaintiff in error, but that he could not have recovered had the suit been brought by him as administrator because of death arising from a wrongful act.

Our only Ohio authority, therefore, is in accord with the former opinion of this court and adverse to the right of the plaintiff in the instant action to allege and recover funeral expenses as an administrator, suing in that capacity, because of death from a wrongful act. We still think that the language of the statute is sufficiently clear when it says,

“The jury may give such damages as it may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit the action was brought.”

And—

“The amount received by such personal representative, whether by settlement or otherwise, shall be apportioned among beneficiaries * * * by the court making the appointment, in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiaries and the laws of descent and - distribution of personal estates left by persons dying intestate.”

The general rule as quoted from Ruling Case Law on page 826 seems to us to be the proper measure of damages. Funeral expenses are not included, were not under the original Lord Campbell’s Act, and have never been provided for by any subsequent act in this jurisdiction.

It will be seen that we still are of the opinion that the statement that the widower paid $483.00 funeral expenses has no place in this pleading.  