dissenting. In light of the express language of R.C. 2125.01, I am unconvinced by the convoluted reasoning offered by the majority opinion to justify its unwarranted result. The wrongful death statute, R.C. 2125.01, clearly precludes appellant from maintaining the instant action. By disregarding the clear meaning of the statute, the majority has in effect overruled the General Assembly’s intent. I must, therefore, respectfully dissent.
Pursuant to the plain language of R.C. 2125.01, a wrongful death action may be maintained only if the decedent would have been entitled to recover damages if death had not ensued. R.C. 2125.01 provides in relevant part:
“When the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the person who would have been liable if death had not ensued * * * shall be liable to an action for damages, notwithstanding the death of the person injured * * (Emphasis added.)
Inasmuch as appellee Davis was the decedent’s husband, the doctrine of interspousal tort immunity would have prevented the decedent from suing her husband if she had survived. Bonkowsky v. Bonkowsky (1982), 69 Ohio St. 2d 152 [23 O.O.3d 188]; Lyons v. Lyons (1965), 2 Ohio St. 2d 243 [31 O.O.2d 504], This action is, therefore, barred under R.C. 2125.01.
The majority, nonetheless, finds the doctrine of interspousal tort immunity inapplicable in the case sub judice on the grounds that the public policies underlying the immunity are not implicated under these circumstances. I cannot agree. The potential for fraud and collusion is still present in cases such as this where insurance may be involved because the decedent’s spouse and children would certainly be beneficiaries of any judgment rendered against the surviving spouse. The possibility of profiting upon being found negligent “creates a strong inducement to trump up claims and conceal possible defenses.” Lyons, supra, at page 245.
Surely, public policy should operate to prevent a party from benefiting from his own wrongdoing. The instant wrongful death action has been brought for the benefit of the tortfeasor himself, the decedent’s spouse. Something has gone awry when the wrongdoer, the husband in this case, may benefit from his wrongful act by way of recovery of damages through his deceased wife’s estate.
*154Furthermore, regardless of insurance, suits such as this threaten to destroy harmony within the surviving family. In this instance, the children would, in effect, be suing their father since they, as well as the father, would benefit from the decedent’s estate if the action were successful. The public policy of encouraging harmony within the family is jeopardized when family members are placed in such adversary roles. Cf. Karam v. Allstate Ins. Co. (1982), 70 Ohio St. 2d 227 [24 O.O.3d 327] (parental immunity upheld).
The General Assembly has clearly provided the instant lawsuit may not be maintained. It is for the General Assembly, and not for this court, to create an exception to the unambiguous mandate of R.C. 2125.01. Bonkowsky, supra; Varholla v. Varholla (1978), 56 Ohio St. 2d 269 [10 O.O.3d 403]; Lyons, supra.
In Lyons this court upheld the doctrine of interspousal immunity and stated at page 247: “If there is to be a change in the public policy of the state in this regard, it should come from the General Assembly.” This principle was also emphasized in Varholla (at page 270: “changes in this area must emanate from the General Assembly, not the courts”), and re-emphasized in Bonkowsky, decided less than a year ago. Now, contrary to the settled law of this state and the clear intent of the General Assembly, the majority has enacted an exception to the wrongful death statute and the doctrine of interspousal immunity.
For the foregoing reasons, I would affirm the judgment of the court of appeals.
Locher, J., concurs in the foregoing dissenting opinion. Holmes, J., dissents.