Ramsey v. Neiman - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Ramsey, Appellant, v. Neiman et al., Appellees.
[Cite as Ramsey v. Neiman (1994), Ohio St.3d. .]
Courts -- Cause of action for wrongful death arising under R.C.
Chapter 2125.
(No. 93-626 -- Submitted March 1, 1994 -- Decided June 29,
1994.)
Appeal from the Court of Appeals for Summit County, No.
15786.
Carrie Hartney and her two children, Pamela and Benjamin,
died in a house fire on June 16, 1989. At the time of the fire
Hartney was renting the house from its owner, appellee Robert
Neiman. Hartney's father, appellant Donald Ramsey, filed a
wrongful death action against Neiman and the city of Akron on
June 17, 1991, the day on which the two-year limitation for
bringing the action was due to expire. See R.C. 2125.02(D).
Ramsey claimed in the complaint to be the personal
representative and the duly appointed administrator of the
estates of Hartney and her children. Ramsey, however,
misstated his status in at least one respect. He was not the
administrator when he filed the complaint, and at no time since
did he apply to the probate court to be administrator.
Neiman and the city of Akron filed motions for summary
judgment on the basis that Ramsey lacked standing to bring the
wrongful death action. He lacked standing, they argued,
because he had not been appointed by a court to be the
decedents' personal representative.
The court of common pleas granted both motions. The court
held that "a wrongful death action cannot be maintained by or
in the name of a relative of the deceased or any other person
who is not the duly appointed and authorized administrator,
executor, or other court appointed representative of the
decedent's estate."
The court of appeals affirmed.
The cause is now before this court pursuant to the
allowance of a motion to certify the record.

Scanlon & Henretta, Lawrence J. Scanlon and James P.
Hanratty, for appellant.

Ulmer & Berne, Harold H. Reader, Roberto H. Rodrigues, Jr.
and Thomas R. Kelly, for appellee Robert Neiman.
Max Rothal, Akron Director of Law, and Laura A. Killian,
Assistant Director of Law, for appellee city of Akron.

Wright, J. The question presented is whether a
wrongful death action may be brought under R.C. Chapter 2125 by
a person who has not been appointed by a court to be the
decedent's personal representative. We answer the question in
the negative and affirm the judgment of the court of appeals.
I
The answer to the question presented in this case depends
on the meaning of the phrase "personal representative" in R.C.
2125.02(A)(1). The applicable language of R.C. 2125.02(A)(1)
has remained virtually unchanged since the date the statute was
originally enacted in 1851. When first enacted, the statute
provided: "Sec. 2. Every such action shall be brought by and
in the name of the personal representatives of such deceased
persons ***." (Emphasis added.) 49 Ohio Laws 117. The
current version states: "[a]n action for wrongful death shall
be brought in the name of the personal representative of the
decedent ***." (Emphasis added.) Because the language
pertinent to the present case has not changed since 1851, we
may determine the meaning of "personal representative" by
examining the definition of the phrase when the statute was
first enacted.
During the latter part of the nineteenth century the
phrase "personal representative" meant "executor" or
"administrator." At least three American law dictionaries in
use around this time and one treatise on the law of torts
defined the phrase in this manner. Volume 2 of the 1876
edition of Bouvier's Law Dictionary at 327 defines "personal
representatives" as "the executors or administrators of the
person deceased." Volume 2 of the 1879 edition of Abbot's Law
Dictionary at 274 defines the phrase as follows: "[It] means
the executor or administrator, and does not include the widow.
*** It means executors or administrators, and not heirs or
devisees of land." The 1893 edition of Kinney's Law Dictionary
and Glossary at 522 defines the phrase to mean only "executors
or administrators." Finally, the editor of a treatise on
torts, commenting on the meaning of the phrase "personal
representative" in various wrongful death statutes, says, "It
is, however, important to note that the term 'personal
representative' employed in these statutes, means the executor
or administrator of the deceased, and not his next of kin."
Pollock on Torts (Webb Ed.1894) 81 (citing cases).
When a word or phrase is not defined in a statute it is
fair to assume that the legislature meant for the word or
phrase to be given its ordinary meaning. As a result, we can
conclude that in 1851 the General Assembly intended the phrase
"personal representative" to include only executors and
administrators, for that seems to have been the accepted
definition of the phrase. And during that time period -- like
today -- a person could not become an executor or administrator
until a probate court appointed the person as such. See Swan,
A Manual for Executors and Administrators in the Settlement of
the Estates of Deceased Persons: With Practical Forms, Etc. (4

Ed. 1855) 1. The inference is clear. The 1851 General
Assembly understood (and therefore intended) that the person
bringing the wrongful death action would be appointed by a
probate court.
Our conclusion in this regard is supported by the language
of England's Lord Campbell's Act (Fatal Accidents Act, 1846),
which formed the basis for Ohio's wrongful death statute. Lord
Campbell's Act, passed by Parliament in 1846 to abrogate the
common-law rule that no action could be maintained against a
person who wrongfully caused the death of another, permitted
only executors or administrators to bring the new cause of
action in wrongful death. The Act provided in pertinent part:
"II. And be it enacted, That every such Action shall be
for the Benefit of the Wife, Husband, Parent, and Child of the
Person whose Death shall have been so caused, and shall be
brought by and in the Name of the Executor or Administrator of
the Person deceased ***." (Emphasis added.) 9 & 10 Vict. Ch.
93, 86 Eng. Stat. at Large 531 (see, also, Speiser, Recovery
for Wrongful Death [2 Ed. 1975] 643, Appendix A).
The language quoted above was the model, in part, for
Ohio's wrongful death statute. There is no evidence,
historical or otherwise, that the 1851 General Assembly
intended to modify the Act in any substantive way by employing
the phrase "personal representative" instead of the words
"Executor or Administrator." If the General Assembly had
intended such a change, it certainly would not have attempted
to accomplish the change by using a phrase that at the time
was, in effect, synonomous with those words. We can therefore
conclude that the General Assembly intended to follow the Act
insofar as it required an executor or administrator, i.e., an
individual appointed by a court, to bring the cause of action.
Subsequent amendments to the wrongful death statute also
support the conclusion reached above, because the amendments
refer to the personal representative as a court-appointed
person. R.C. 2125.02(C) requires the personal representative
to be appointed before settlement of the case. R.C. 2125.02(C)
states in part:
"A personal representative appointed in this state, with
the consent of the court making the appointment ***, may settle
with the defendant the amount to be paid." (Emphasis added.).
Former R.C. 2125.03(A) refers to the personal
representative as if he or she had been appointed whether or
not the case was settled. R.C. 2125.03(A) (now renumbered
[A][1]), stated:
"The amount received by a personal representative in an
action for wrongful death ***, whether by settlement or
otherwise, shall be distributed to the beneficiaries or any one
or more of them. The court that appointed the personal
representative shall, except when all of the beneficiaries are
on an equal degree of cosanguinity to the deceased person,
adjust the share of each beneficiary in such manner as is
equitable ***." (Emphasis added.)
Because only persons appointed by a court are authorized
by R.C. 2125.02(C) to settle a wrongful death action, an
anomalous situation would result if a person not so appointed
was permitted to bring the action. Such a person could
presumably dismiss the action or reduce it to judgment subject

only to the constraint that he or she not breach the fiduciary
duty owed to the beneficiaries. The non-appointed person,
however, could not settle the action unless he or she first
became appointed by a court to be the decedent's personal
representative, a requirement that would inevitably delay -- to
the possible detriment of the beneficiaries -- the settlement
proceedings.
In addition, good policy reasons exist for requiring, as a
condition precedent to the maintenance of a wrongful death
action, that the person bringing the action be appointed by a
court. Such a requirement eliminates the possibility that the
defendant will face more than one lawsuit. It also allows for
potential conflicts of interest to be revealed in advance of
the filing of the action. And it ensures to some degree that
the wrongful death action will be brought by a person who will
act in the best interests of the beneficiaries, the real
parties in interest.
Appellant nevertheless asks us to define him, the father
and grandfather of the deceased, as the personal representative
even though he was not appointed to be the decedents' personal
representative, he was not appointed to be the administrator of
their estates, and he has never applied to be appointed to
either capacity. Appellant does not, however, explain how the
text or history of the wrongful death statute allows us to do
so in the absence of a court appointment. In the absence of a
court appointment, appellant can only be defined as the next of
kin of the decedents. And, unlike the wrongful death statutes
in some states, Ohio's wrongful death statute does not define
"personal representative" according to familial
relationships.1
To grant appellant's request to define him as the personal
representative of his daughter and grandchildren would require
us to rewrite the statute, and that we cannot do. Instead, we
heed the advice of Justice Frankfurter, who said: "A judge must
not rewrite a statute, neither to enlarge nor to contract it.
Whatever temptations the statesmanship of policy-making might
wisely suggest, construction must eschew interpolation and
eviscertion. He must not read in by way of creation. He must
not read out except to avoid patent nonsense or internal
contradiction." Frankfurter, Some Reflections on the Reading
of Statutes (1947), 47 Colum. L. Rev. 527, 533.
Given the history surrounding the enactment of Ohio's
original wrongful death statute and considering the
subsequently enacted provisions in the statute, we hold as
follows: A cause of action in wrongful death arising under R.C.
Chapter 2125 must be brought in the name of a person appointed
by a court to be the administrator, executor, or personal
representative of the decedent's estate.
II
Appellant also argues that if he is appointed by a court
to be the decedents' personal representative and amends his
petition to reflect the appointment, the amendment should
relate back to the date he filed the complaint. Appellant
cites two cases to support his argument, Kyes v. Penn. Rd. Co.
(1952), 158 Ohio St. 362, 49 O.O. 239, 109 N.E.2d 503, and
Douglas v. Daniel Bros. Coal Co. (1939), 135 Ohio St. 641, 15
O.O. 12, 22 N.E.2d 195.

In Kyes, an ancillary administrator was appointed in Ohio
before the time limit for bringing a wrongful death action had
expired. The administrator's appointment was later vacated
after the time limit expired, and a new administrator was
substituted as the plaintiff. The court in Kyes held that the
substitution was permissible because the cause of action
remained unchanged and the administrator was only a nominal
plaintiff and not the real party in interest.
In Douglas, the plaintiff filed a wrongful death action
under the mistaken belief that she had been appointed
administrator of the decedent's estate. She later discovered
her mistake and corrected it by seeking and obtaining a court
appointment to be administrator. The court in Douglas allowed
her amended petition to relate back to the date of the filing
of the complaint because "the cause of action set up in the
petition [was] in no way affected by the corrections contained
in the amendment." Douglas, supra, at 647, 15 O.O. at 15, 22
N.E.2d at 198.
The facts in Kyes or Douglas are not analogous to the
facts of the instant case. Kyes addressed the substitution of
one appointed plaintiff for another; Douglas involved a
plaintiff who mistakenly believed she had been appointed
administrator and who later became appointed. Again we note
that appellant has not been appointed administrator, nor does
the record show any attempt on his part to become appointed.
Moreover, we cannot decide the question whether
appellant's appointment will relate back to the date he filed
his complaint because the question is based on an assumed set
of facts. The question, therefore, cannot be the result of any
claimed error in the courts below, and "*** [a]ppeals are not
allowed for the purpose of settling abstract questions, but
only to correct errors injuriously affecting the appellant."
Ohio Contract Carriers Assn., Inc. v. Pub. Util. Comm. (1942),
140 Ohio St. 160, 23 O.O. 369, 42 N.E.2d 758, syllabus. We
therefore decline to hold that appellant's future appointment
as personal representative of the decedents' estates -- should
such an appointment ever occur -- will relate back to the date
he filed his complaint.
For the foregoing reasons, the judgment of the court of
appeals is affirmed.
Judgment affirmed.
Moyer, C.J., and A.W. Sweeney, J., concur.
Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur in
judgment only.

FOOTNOTE:
1 The wrongful death statutes of some states allow family
members to bring suit. See, e.g., Ariz. Rev. Stat. Ann.
Section 12-612(A) ("An action for wrongful death shall be
brought by and in the name of the surviving husband or wife or
personal representative of the deceased person ***. Either
parent may maintain the action for death of a child ***.")
(Emphasis added.); and N.D. Cent. Code Section 32-21-03 ("The
action shall be brought by the following persons in the order
named: 1. The surviving husband or wife, if any. 2. The
surviving children, if any. 3. The surviving mother or
father. 4. The personal representative.") (Emphasis added.)

Pfeifer, J., concurring in judgment only. I agree with
the lead opinion's conclusion that R.C. 2125.02(C) mandates
that a personal representative in a wrongful death case be
appointed by a court before the case is settled. That is what
the statute expressly requires.
I do not agree with the lead opinion's conclusion that
R.C. 2125.02(A)(1) mandates that the personal representative be
appointed before he or she can enter the courthouse to file a
wrongful death complaint. That is not what the statute
expressly requires.
Grief-stricken families spend significant periods of time
deliberating whether a wrongful death action should be brought
on behalf of a deceased loved one. These lengthy deliberations
often result in a wrongful death complaint being filed at the
last minute.
A relative who finally decides to file a wrongful death
complaint must not be obligated to first go through the lengthy
process of obtaining a court appointment before filing the
complaint. This delay would unnecessarily jeopardize a
personal representative's chances of filing the complaint
within the two-year limitations period.
The language in R.C. 2125.02(A)(2) and 2125.02(C)
indicates that the personal representative must be
court-appointed after the complaint has been filed, but before
any judgment is entered or any settlement is reached.
Summary judgment would provide the appropriate mechanism
to screen out those plaintiffs who have not received court
appointment after filing their complaints. In the present
case, the plaintiff was not appointed as the decedents'
personal representative after he filed his complaint. Thus,
the trial court correctly granted defendants' motions for
summary judgment, but for the wrong reason.
Douglas, Resnick and F.E. Sweeney, JJ., concur in the
foregoing concurring opinion