Immel v. Richards (154 Ohio St. 52, 1950)

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_