
    Immel, Admr., Appellee, v. Richards, Appellant.
    (No. 32031
    Decided June 21, 1950.)
    
      
      Mr. E. K. Forsyth, for appellee.
    
      Messrs. Cummins & Boiler, for appellant.
   Turner, J.

Defendant-appellant’s principal contention is that the evidence proves no pecuniary damage.

This is an action under Section 10509-167, General Code, which provides in 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 may think proportioned to the pecuniary injury resulting from such death, to the persons, respectively, for whose benefit the action was brought.”

In his brief appellant says:

“There exists no authoritative statement from this court regarding damages in infant death cases which may occur in this state.”

We adopt the following statement to be found in 25 Corpus Juris Secundum, 1252, Section 103:

“There can be no exact or uniform rule for the determination of the value of services or assistance which the deceased child would have rendered had death not intervened. Factors for consideration are the age, sex and physical and mental condition of the child, and the position in life, occupation and physical condition of the parents. The value of the services is to be estimated on the basis of what children in the same condition and station of life and of like capabilities are ordinarily worth, without regard to any peculiar value which the parents might attach to the child’s services. In case the minor is a girl, the jury cannot consider the chance of her marrying before she arrives at full age, where there is no clear evidence before them by which they could arrive at a reasonably definite conclusion on the subject.”

In the case of Karr, Admr., v. Sixt, 146 Ohio St., 527, 67 N. E. (2d), 331, it was held in paragraph four of the syllabus as follows:

“Under Section 10509-167, General Code, providing that in an action for wrongful death any award of damages is to be governed by the ‘pecuniary injury’ resulting from the death, a presumption of pecuniary injury ordinarily exists in favor of those persons legally entitled to services, earnings or support from the decedent. ’ ’

In addition to the foregoing presumption, the evidence showed the mother to be 22 years of age, the husband 30 years old and with an income of $50 per week. The family was possessed of very little personal goods.

It is the law of this state that until the child is emancipated its wages belong to the parent.

In 30 Ohio Jurisprudence, 581, Section 31, it is said:

“Obviously, where an unemancipated minor child has been injured through the wrongdoing of another, the parent as well as the child may suffer pecuniarily.”

In the case of Clarke v. Eighth Avenue Rd. Co., 238 N. Y., 246, 144 N. E., 516, 37 A. L. R., 1, it was held that the parent of an infant injured by another’s negligence may recover what the jury may fairly say from the evidence is sufficient to compensate the parent for the presumptive loss of service of the infant during his minority, less what it would have cost to have supported and maintained him during that time, had he not been injured.

The A. L. R. report of the foregoing case is followed by an annotation beginning at page 11.

Not only is the parent entitled to the minor’s earnings until emancipated, but the adult child, if able, is required to support an aged destitute parent. Section 12429, General Code.

In 149 A. L. R., 235, it is said:

“The great weight of authority is to the effect that substantial damage may be recovered by the parents of a minor child, or others who may have a right to bring an action to recover damages for his wrongful death, notwithstanding the fact that such child had never been gainfully employed, such damage.s-.lo be measured by the experience and judgment of the jury, enllghtenecTby a knowledge of the age7Ne~x"~and physicaFand mental characteristics-^ the child, supplemented,' when ' available,'"with "evidence as to the position in life and earning capacity" of the parents, as well as’Fyidence as to "the rendition, if any, of household services..by the minor.”

In the case of Fhl, Admr., v.Forty Second St. & Y., 317, 7 Am. Rep., Grand St. Ferry Rd. Co., 47 N. 450, the court said:

“It was within the province of the jury, who had before them the parents, their position in life, the occupation of the' father, and the age and sex of the child, to form an estimate of damages with reference to the pecuniary injuries, present or prospective, resulting to the next of kin. Except in very rare instances, it would be impractical to furnish direct evidence of anv specific loss occaslWgdHTV~tfae~duatli_<i.fba child of such tender years; and to hold that, without such proof, the plaintiff could not recover, would, in effect, render the statute nugatory in all cases of this description. It cannot be said, as a matter bf lawjthat there is "no” pecuniary damage in such a case, or that the expense of maintaining and educating the child would necessarily exceed any pecuniary advantage which the parents could have derived from his services had he lived. These calculations are for the jury, and any evidence on the subject, beyond the age and sex of the child, the circumstances and condition in life of the parents, or other facts existing at the time of the death or trial would necessarily be speculative and hypothetical, and would not aid the jury in arriving at a conclusion.”

In 17 Corpus Juris, 1331, Section 201, quoted with approval in Ochsner, Admr., v. Cincinnati Traction Co., 107 Ohio St., 33, 42, 140 N. E., 644, it is said :

“The mental, moral and physical characteristics of the child must be considered, as well as his expectation of life, in determining the extent of the pecuniary aid which he would probably give to his parents, and the jury are authorized to take into consideration the probable future increase of earning capacity of the _child. ’ ’ ~~

~~ We are of the opinion that by the death of this child _the parents sustained a pecuniary loss.

Appellant claims there was misconduct on the part of the jury. The record discloses that the jury, after deliberating some time, returned to the court room and propounded to the court two written questions concerning which the following occurred:

“Question 1. Did this man carry any insurance? (a) What kind? (b) How much?

“The court wishes to instruct you that if any of you have any idea that the defendant did or did not have any insurance, you should disregard such idea concerning insurance as that has no bearing on this case whatsoever — you are not concerned whatsoever with that — it should have no bearing on your verdict in this case. You can’t consider that. It should be disregarded from your minds, so forget about the insurance question. Do not base any verdict on anything about insurance in this case. Is that clear to the jury?

“To which question of the court, the jurors nodded in the affirmative.

“Court: Question 2. What portion of this accident and funeral expense did he pay? (a) Or offer to pay? The court instructs you that for the jury to consider funeral and medical expenses, it was upon the plaintiff to prove by a preponderance of the evidence that one of the beneficiaries herein either paid, or was obligated to pay, the funeral expenses and the medical expenses in this case. No evidence was offered so, therefore, the court instructs you that since no evidence has been offered, you should disregard those items in arriving at your verdict. Is that clear?

“To which question of the court, the jurors nodded in the affirmative.

“Court: Anyone may ask any further questions. If that is all, you may again be taken to the jury room for further deliberations.

“Whereupon, the jury again retired to the jury room for deliberation. ’ ’

• No objection to the foregoing procedure was raised. It is not suggested that the answers to the questions were incorrect but simply that the subject of insurance arose and the appellant, therefore, claims that a mistrial should have been declared and the jury discharged.

We are of the opinion that no prejudicial error occurred. See, also, Section 11364, General Code.

Appellant claims further that the verdict of the jury in this cause was excessive and appears to have been given under the influence of passion and prejudice which prevented appellant from having a fair trial. After an examination of the record we are of the opinion that the verdict is not excessive and does not appear to have been given under the influence of passion or prejudice.

Being of the opinion that the record in this case discloses no prejudicial error, the judgment of the Court of Appeals should be, and hereby is, affirmed.

Judgment affirmed.

Weygandt, C. J., Matthias and Zimmerman, JJ., concur.

Hart, Stewart and Taft, JJ., dissent.

Stewart, J.,

dissenting. I concur in the syllabus but dissent from the judgment for the reason that in my opinion the record affirmatively shows that the jury based its verdict upon the supposed amount of a casualty insurance policy rather than giving such damages as it may have thought proportioned to the pecuniary injury resulting from the death of plaintiff’s decedent.

Hart and Taft, JJ., concur in the foregoing dissenting opinion.

Taft, J.,

dissenting. I agree with the conclusions of law announced in the syllabus and with most of what is said in the opinion in support of those conclusions. However, the principal question raised, briefed and argued in the instant case relates to the claimed excessive amount of the jury’s verdict. This question is referred to only in the next to the last paragraph of the majority opinion, where it is summarily disposed of. I do not believe it can be so disposed of without ignoring previous decisions of this court, which appear to require a judgment in the instant case, different from that being rendered.

In Karr, Admr., v. Sixt, 146 Ohio St., 527, 67 N. E. (2d), 331, paragraph six of the syllabus reads:

“The term ‘pecuniary injury’ as used in Section 10509-167, Genera] Code, 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.)”

As stated in the dissenting opinion by Wanamaker, J., in Schendel v. Bradford, Admr., 106 Ohio St., 387, 404, 140 N. E., 155:

“The doctrine of pecuniary damages * * * is so cold and calculating as to be really bloodless. Awarding pecuniary damages to the next of kin of a child six years of age is merely making a business commodity out of the child, and subjecting the loss of that child’s life to the dollars and cents argument, limited to how much that child would probabily contribute in later years, had he lived, to the father and mother, or brothers and sisters.”

Judge Wanamaker’s protest against “this coldblooded calculating measure of human life” is readily understandable.

However, as appears from the syllabus and opinion in Karr, Admr., v. Sixt, supra, “this measure” was provided by the General Assembly in creating the action for wrongful death which did not exist at common law. As pointed out in that case and in the decisions of this court which it followed and approved, this court has repeatedly recognized that it does not have the power to change this measure which the General Assembly prescribed in creating the cause of action.

There is much force to the argument that the limitation of the damages recoverable for wrongful death to such as are “proportioned to the pecuniary injury resulting from such death, to the persons, respectively, for whose benefit the action was brought,” contained in Section 10509-167, represents a limitation by law of the amount of damages recoverable for wrongful death and is ineffective by reason of the provisions of Section 19a of Article I of the Constitution as amended in 1912. That section reads:

“The amount of damages recoverable by civil action in the courts for death caused by the wrongful act, neglect, or default of another, shall not be limited by law.”

However, that argument was rejected by this court in its decision in Kennedy, Admr., v. Byers, 107 Ohio St., 90, 140 N. E., 630 (paragraphs one and two of the syllabus), and the decision in that case to that effect was expressly approved and followed in paragraph six of the syllabus in Karr, Admr., v. Sixt, supra.

In that paragraph of the syllabus, this court recognized that “the term ‘pecuniary injury,’ as used in Section 10509-167, General Code, comprehends essentially injury measured by the prospective advantages of a pecuniary nature * * * cut off by the premature death of the person from whom they would have proceeded. ”

Attention is invited to paragraph two of the syllabus in Pennsylvania Co. v. Files, 65 Ohio St., 403, 62 N. E., 1047, which reads:

“Where prospective damages from an injury are claimed, they should be limited by the court in its charge to such as may be reasonably certain to result from the injury. ’ ’

Can any reasonable mind come to the conclusion (see Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246) that, upon the evidence in this case, “the prospective advantages of a pecuniary nature * * # cut off by the premature death” of decedent were “reasonably certain” to equal any substantial sum? In order to answer that question, “yes,” it is necessary to shut one’s eyes to the realities of life. If the answer is, “no,” the duty that this court has to perform is clearly indicated in Bartlebaugh v. Pennsylvania Rd. Co., 150 Ohio St., 387, 82 N. E. (2d), 853.

However, even if the rule, repeatedly approved by this court with regard to the proof of prospective damages, does not apply in a wrongful death case, the plaintiff’s judgment for $5,000 should not be affirmed.

It is axiomatic that the amount of damages to be awarded in any negligence or wrongful death action is an issue of fact upon which the plaintiff has the burden of proof, just as the plaintiff has the burden of proof on the issue of fact as to the defendant’s negligence and on the issue of fact as to a proximate causal connection between that negligence and the plaintiff’s injury. As noted in the syllabus in Schendel v. Bradford, Admr., supra, “in actions for wrongful death the amount of pecuniary injuries sustained is an issuable fact”; and, as stated by Matthias, J., in his dissenting opinion in Chester Park Co. v. Schulte, Admr., 120 Ohio St., 273, 294, 166 N. E., 186, “the amount of damages, as well as the presence or absence of negligence, is a question of fact.”

In a wrongful death action “a presumption of pecuniary injury ordinarily exists in favor of” the father and mother of the deceased child because they are legally entitled to services or support from the child. Karr, Admr., v. Sixt, supra, paragraph four of the syllabus and page 535. As appears from the opinion in that case, this presumption, like many presumptions, is based on reason. But, without any proof, can it reasonably be said that such “pecuniary injury” (as that statutory term has been defined repeatedly by the decisions of this court) from the death of a nine-month-old child could equal $5,000? The obvious answer is, “no.” Cf. Bartlebaugh v. Pennsylvania Rd. Co., supra.

A decision in the instant case that the plaintiff has sustained the burden of proof on the issue of fact as to the $5,000 amount of damages included in the verdict must necessarily disregard several recent pronouncements of the law by this court.

Thus, in Gedra v. Dallmer Co., 153 Ohio St., 258, paragraph three of the syllabus reads:

“In such an action [a negligence action], if the cause of an injury to a plaintiff may be as reasonably attributed to an act for which defendant is not liable as to one for which he is liable, the plaintiff has not sustained the burden of showing that his injury is a proximate result of the negligence of the defendant.” In Boles v. Montgomery Ward & Co., 153 Ohio St., 381, paragraph six of the syllabus reads:

“In such an action [also a negligence action], a verdict for plaintiff predicated upon conjecture, guess, random judgment or supposition cannot be sustained.”

In Brandt v. Mansfield Rapid Transit, Inc., 153 Ohio St., 429, paragraphs one and two of the syllabus read:

“1. As triers of issues of fact a jury is required to determine probabilities.

“2. Such determination of probabilities cannot be based on testimony as to mere possibilities.”

In Gerich v. Republic Steel Corp., 153 Ohio St., 463, paragraph two of the syllabus reads:

“It is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a reasonable basis for sustaining his claim. If the evidence so produced furnishes only a basis for a choice among different possibilities as to any issue in the case, he fails to sustain the burden as to such issue.”

In the instant case, there is no serious claim that there should have been a verdict for defendant. As I see it, the previous decisions of this court require it to determine the highest amount that a reasonable mind could determine, from the evidence in this case, as “the pecuniary injury,” within the meaning of this term as used by the General Assembly and repeatedly interpreted by this court.

If this court determines that the difference between that highest amount and $5,000 is such as to indicate passion and prejudice of the jury, this court should probably reverse the judgment. See Chester Park Co. v. Schulte, Admr., supra, paragraph two of the syllabus. At the very least, it should reverse the judgment, unless the plaintiff agrees to a remittitur of the portion of the verdict which was in excess of such highest amount. Bartlebaugh v. Pennsylvania Rd. Co., supra.  