
    City of Cincinnati v. Bachmann, Admx.
    (Decided April 1, 1935.)
    
      Mr. John D. Ellis, city solicitor, Mr. J. B. Grouse, Jr., and Mr. Francis T. Bartlett, for plaintiff in error.
    
      Messrs. Gors & Scherer and Mr. John L. Ernsberger, for defendant in error.
   Ross, P. J.

This is a proceeding in error to reverse a judgment of the Court of Common Pleas of Hamilton county rendered in favor of Lula Bachmann, Administratrix, the plaintiff therein.

The parties will be referred to as they appeared in the trial court.

The plaintiff sued the city of Cincinnati to recover damages on behalf of the widow, father, brothers and sister of her decedent, who was injured by reason of a collision with an automobile operated by the defendant city of Cincinnati, from which injuries he later died. An ordinance of the city permitted the action.

The automobile was being driven by a police officer on duty. The decedent was riding a bicycle, and attempted to turn to the left over an intersecting street in front of the police automobile, proceeding in the same direction.

The negligence charged is that the police drove the automobile at a high and dangerous rate of speed in violation of the city ordinances, drove the automobile on the wrong or left side of the street, attempted to pass at a street intersection, and failed to have the automobile under proper control.

The defense alleged was contributory negligence, a violation of the city ordinances requiring a bicycle to be ridden at a distance not more than five feet from the curb line, and not against traffic, and sole negligence in that the decedent rode the bicycle at a high rate of speed, in a reckless and careless manner, without regard to his own safety or the rights of others, and in violation of the city ordinances governing the operation of bicycles upon the streets of the city at the time the injuries were inflicted upon the decedent as a result of the collision, and that Section 10772, General Code, was then in force. This section provided in part:

“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 proportioned to the pecuniary injury resulting from such death, to the persons, respectively, for whose benefit the action was brought.” (103 Ohio Laws, 116.)

This section was repealed January 1, 1932, the sections of the new act replacing it being now numbered Sections 10509-167 and 10509-168, General Code (114 Ohio Laws, 438). They became effective January 1, 1932, and the petition in the instant case was filed February 26, 1932.

Section 10509-167, General Code, reads as follows: “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 may think .proportioned to the pecuniary injury resulting from such death, to the persons, respectively, for whose benefit the action was brought. Except as otherwise provided by law, every such action must be commenced within two years after the death of such deceased person. Such personal representative, if he was appointed in this state, with the consent of the court making such appointment, may, at any time before or after the commencement of the suit, settle with the defendant the amount to be paid.”

The court charged, in part, as follows:

“I want to call your attention to the rule for damages, allowable as to damages in this case. It is wholly a question of the money or monetary benefit that this decedent would have been to this wife, brothers, sister and father, had he lived and not have been killed as a result of this collision. You are to allow nothing for pain and suffering, nothing for bereavement. There is no consideration that should be in your minds in calculating the damages in this case, if you find for the plaintiff, except the cold single proposition, had the decedent lived how much in money or in a monetary way in benefit would have reasonably come to this wife, brothers, sister and father had he lived and not have been killed as a result of this collision.”

It is contended by the defendant that the court in so charging committed error. The grounds for this contention are that the statute, Section 10509-167, General Code, cannot be given a retrospective effect. Under Section 10772, General Code, the widow alone would be the beneficiary. Under Section 10509-167, General Code, the father, brothers, and sister are included as beneficiaries. Obviously the amount and even existence of damages is affected by the change in the law. The amount of recovery is directly proportioned to the pecuniary loss to the beneficiary. If there is an added number of beneficiaries, plainly the amount of such loss and consequent amount of damages may be greatly increased and a new and additional burden be placed upon the defendant. That is, on the date of the collision the defendant was responsible to a certain extent to respond in damages for the pecuniary loss to the widow, whereas, if the amended section is now applicable, the defendant’s responsibility is increased to include responsibility for loss to the father, brothers, and sister of decedent as their pecuniary losses may respectively be proved.

We quote from Safford, Supt. of Ins., v. Metropolitan Life Ins. Co., 119 Ohio St., 332, 164 N. E., 351, paragraph one of the syllabus:

“A statute which creates a new obligation in respect to transactions or considerations already past is violative of Article II, Section 28 of the state constitution, which forbids the enactment of retroactive laws by the general assembly.”

And from page 335 of the opinion we quote:

“The terms ‘retroactive’ and ‘retrospective’ are synonymous, and are used interchangeably. The definition of that term announced by Justice Story has been heretofore approved by this court in Rairden v. Holden, Admr., 15 Ohio St., 207, and Commissioners v. Rosche Bros., 50 Ohio St., 103, 33 N. E., 408, 19 L. R. A., 584, 40 Am. St. Rep., 653. It is as follows:

“ ‘Every statute which takes away or impairs vested rights, acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective.’ ”

In Miller v. Hixon, Treas. of Highland Co., 64 Ohio St., 39, 59 N. E., 749, paragraph one of the syllabus holds:

“A statute which imposes a new or additional burden, duty, obligation, or liability, as to past transac-. tions, is retroactive, and in conflict with that part of section 28, article two of the constitution, which provides that, ‘The general assembly shall have no power to pass retroactive laws.’ ”

And at page 51 of the opinion it is stated:

“. ‘The general assembly shall have no power to pass retroactive laws.’ Article 2, section 28. This provision is in the nature of an estoppel. The general assembly having the power to enact laws, and on the one hand having failed to do so, and permitted persons to conduct their affairs with reference thereto, or on the other, having enacted laws with certain limitations, and persons having conformed their conduct and affairs to such state of the law, the general assembly is prohibited, estopped, from passing new laws to reach back and create new burdens, new duties, new obligations, or new liabilities not existing at the time.”

Section 26 of the General Code provides:

“Whenever a statute is repealed or amended, such repeal or amendment shall in' no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

The manifest object of above section is to prevent a violation of the Constitution. The only exception to any such action by the Legislature, (and it is really no exception), is legislation affecting the remedy. The dimension and character of the cause of action, and the right, must remain fixed as of the date when the cause of action arose, but new remedies may be given for enforcing such existing rights without coming within the inhibition of the Constitution and statutes.

It is held in paragraph one of the syllabus in the case of Gager, Treas., v. Prout, 48 Ohio St., 89, 26 N. E., 1013:

“A retrospective statute, remedial in nature, that is, giving a new remedy for the enforcement of an existing right, is not repugnant to the provision in our constitution inhibiting the passage of retroactive laws. Rairden v. Holden, Adm’r, 15 Ohio St. 207.”

See also the text and authorities noted in 8 Ohio Jurisprudence, 563, Section 428, and Kimmel et al., D. B. A. Kimmel Realty Co., v. King, 125 Ohio St., 505, 182 N. E., 516. And in Smith v. New York Central Rd. Co., 122 Ohio St., 45, 170 N. E., 637, paragraph one of the syllabus holds: “A statute which relates exclusively to remedial rights is not within the purview of the constitutional inhibition against the legislative enactment of retroactive laws.”

The real character of the legislation is more apparent if the chronology of the statute and amendment is reversed. If the father, brothers and sister, under the original section had the right to direct instead of contingent participation in the sum of the damages according to their respective pecuniary loss, and the amendment had deprived them of such direct right, and had relegated them to a contingent participation, who would say that they had not lost a right, or that only a remedy had been affected? If the effect of withholding a right is so plainly within the purview of the inhibition, the creation of a right to participate can be none the less so within such purview. At page 106 of the opinion in Gager, Treas., v. Prout, supra, the court says:

“All laws intended to affect the conduct or the acquisition of rights by the citizen, should have a prospective effect only. This is the principle incorporated in our constitution, inhibiting retroactive laws, and finds a place in every enlightened system of jurisprudence. But the principle in no way impairs the power of the legislature to pass laws of a remedial nature, and apply them to past as well as future cases. Where a right has accrued a remedy for its enforcement cannot be said to impair any right of the person against whom it is enforced; to assert the contrary would be to confound the wrong with the right.”

Again, we quote from Commissioners v. Rosche Bros., 50 Ohio St., 103, at pages 111, 112, 33 N. E., 408, 40 Am. St. Rep., 653, 19 L. R. A., 584:

“However every statute that is designed to act retrospectively is not retroactive within the terms of section 28, of art. II, of the constitution of 1851, which forbids the general assembly of this state to pass ‘retroactive’ laws. Whether a statute falls within the prohibition of this provision of the constitution depends upon the character of the relief that it provides. If it creates a new right, rather than affords a new remedy to enforce an existing right, it is prohibited by this clause of the constitution of this state,

“Judge Story defines a retrospective, or retroactive law, as follows: ‘Upon principle, every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past, must be deemed retrospective.’ The Society, etc. v. Wheeler, 2 Gall. 104-139. This definition was approved by this court in Rairden et al. v. Holden, 15 Ohio St., 207. It was also adopted by the Supreme Court of the United States in Sturges v. Carter, 114 U. S., 511.” (Italics ours.)

It is our conclusion that the statute unquestionably creates a new right — a right to participate directly— according to the respective pecuniary loss in the father, brothers and sister, and that it cannot be given a retrospective or retroactive effect.

The charge including the father, brothers and sister as beneficiaries — whose respective pecuniary loss was a matter for consideration by the jury — was erroneous and constituted prejudicial and reversible error.

It is contended by the plaintiff that even if the charge' of the court was erroneous the error was caused and invited by the defendant, in that the court gave a special charge at defendant’s request, recognizing that the next of kin were proper beneficiaries, whose pecuniary loss must be included in the general total of damages. Such a charge was presented; and were this the only error in the case we might be compelled to give serious consideration to this contention. However, other prejudicial error intervened, as we will presently indicate, and this coupled with the fact that the inception of the erroneous premise as to the éxtra beneficiaries was presented to the court by the plaintiff causes us to include the error in the charge as reversible error.

The defendant set up contributory negligence as a defense. During the trial it became apparent that the decedent had endeavored to make a left-hand turn, across the path of the automobile, in order to ride out an intersecting street. The record shows. that the following occurred:

“Mr. Grause: At this time I want to introduce in evidence three ordinances of the City of Cincinnati, by furnishing certified copies by the Clerk of Council.

“Mr. Scherer: We object to those that they have not pleaded in their answer.

“Mr. Grause: Two of these are not in the pleadings. They are on file and one is in the pleadings.

“The Court: You may introduce the one you have pleaded. The other two will not be admitted. (Said ordinance No. 74-84 was marked Defendant’s Exhibit No. 4, it being hereto attached and made a part hereof.)

“Mr. Grause: Note my exception to the ruling on the other two.

“(Said ordinances No. 74-25 and 74-79 which were refused were marked Defendant’s Identification B and C, respectively, being hereto attached and made a part hereof.)”

Section 74-79 is the city ordinance requiring a signal to be given by the operator of a vehicle before executing a change of direction or stopping. The rule requiring the pleading of municipal ordinances does not apply to the defense where the evidence develops a proper application of the same. Knisely v. Community Traction Co., 125 Ohio St., 131, 135, 180 N. E., 654. The second paragraph of the syllabus holds:

“The requirement that municipal ordinances, the violation of which is alleged as grounds of negligence in a personal injury suit, must be pleaded as grounds for affirmative relief, does not apply where it is sought to introduce municipal ordinances in support of the general allegation of contributory negligence as a defense. (Hanna v. Stoll, 112 Ohio St., 344, 147 N. E., 339, approved and followed.) ”

The court did not abuse its discretion in refusing the filing of the amended answer, as the defense of contributory negligence could have been properly presented to the jury under the existing pleadings.

In 29 Ohio Jurisprudence, 785, Section 234, it is stated:

“In fact, it is the established rule in Ohio that even though the pleadings do not raise the question of contributory negligence, if it becomes an issue in a case by virtue of the evidence, it then becomes the duty of the court, regardless of the pleadings, to charge on that issue, and the fact that it is not pleaded is immaterial.”

See, also, Cincinnati Traction Co. v. Young, 115 Ohio St., 160, 152 N. E., 666.

We find no other error in the record prejudicial to the plaintiff in error.

For the reasons given, the judgment of the Common Pleas Court is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Matthews and Hamilton, JJ., concur.  