¶1 dissenting. The majority opinion has failed to note any distinction between a wrongful death action in which parents or children are beneficiaries and a wrongful death action in which the only beneficiaries are collateral heirs. For cases noting this distinction, see Martin, Admx., v. Pennsylvania Rd. Co., 55 Ohio App. 205, paragraph two of the syllabus which reads:
“There is no presumption of pecuniary loss in favor *205 of collateral heirs, resulting from the wrongful death of a child, as there is in the case of parents, since there is no legal obligation on a child to support collateral heirs, and the latter are not entitled to the earnings of such child.”
¶2 Also, see Karr, Admr., v. Sixt, 146 Ohio St. 527, paragraphs four and five of the syllabus:
“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.
“No such presumption obtains as to collateral kindred having no legal claims on the decedent, and the infliction of ‘pecuniary injury’ on them by reason of the death ought to appear, from the evidence before they may be consider-ered in the award of damages.”
¶3 Paragraph six of the syllabus reads:
“The term ‘pecuniary injury’ as used in Section 10509-167, General 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. …”
¶4 In the instant case, defense counsel made no claim that final judgment should be rendered for the defendant. He concluded his brief as follows:
“It is therefore submitted that this case should be reversed and returned to the trial court for a new trial where the jury would be confined to the evidence before it in arriving at its verdict.”
¶5 I find insufficient evidence to sustain either the verdict of $25,000 or the judgment of $12,500 awarded after the order of remittitur was agreed to by the plaintiff. Therefore, such verdict was not cured by remittitur and both the verdict and judgment are against the manifest weight of the evidence.
¶6 Considering, however, the circumstances of the sou *206 and parents as evidenced in the record, their relationship, the presumption that had the son lived he would have given financial assistance when needed, and all of the evidence relative to pecuniary loss, I find a jury question presented as to the amount, if any, that a reasonable mind could determine from the evidence in this case as the “pecuniary injury” within the meaning of that term as used in Section 2125.02, Revised Code, and interpreted by the Supreme Court of Ohio.
¶7 Where a jury question is presented, even though the jury might find the “pecuniary loss” to be small or find no “pecuniary loss,” it is contrary to law for the court to render final judgment for the defendant.
¶8 Where there is sufficient evidence to have raised a jury question as to “pecuniary injury,” the unanimous conclusion of all three appellate judges, that the evidence is insufficient to support either a verdict in the amount rendered or a judgment in the amount rendered after re-mittitur, is an expression of the conclusion that the verdict is against the manifest weight of the evidence. In such a situation, it is the sole function of the Court of Appeals to set aside the judgment and remand the cause for a new trial. See State v. Geghan, 166 Ohio St. 188.
¶9 The judgment ought to be reversed, with remand for a new trial and further proceedings according to law.