
    Garrard, Admr., v. The Mahoning Valley Railway Co.
    
      Wrongful death — ■ Personal representative may sue — For benefit of parents and next of kin, when — Section 10772, General Code — Husband and wife injured — Wife dies after husband — Action lies for benefit of husband’s next of kin, when.
    
    
      1. Under the provisions of Section' 10772, General Code, the right to enforce liability thereunder is lodged in the personal representative of the deceased, for the benefit of the persons or classes therein named. If the favored class, wife or husband and children, was not in existence at the time of bringing such action, the action may be 'brought for the benefit of the deceased’s parents and next of kin.
    2. A husband and wife sustained personal injuries causing the death of both, but the latter survived her husband a few hours. After the death of the wife, the husband’s personal representative instituted suit, under the section named, for the benefit of the husband’s father, mother, brothers and sisters, there being no children pf the deceased: Held, the action was properly brought.
    (No. 16160
    Decided July 8, 1919.)
    
      Error to the Court of Appeals of Trumbull county.
    On April 27, 19.15, while Fred H. Garrard, accompanied by his wife, was riding on a motorcycle, that vehicle was struck by á car of the defendant company. The testimony'discloses that the husband was killed instantly, while the wife, though unconscious, retained life for a period of about two hours after her husband’s death. The husband’s administrator brought suit to recover damages for the benefit of the husband’s father, mother, brothers and sisters, the surviving next of kin of the deceased.
    The defendant’s answer challenged the legal right of the husband’s next of kin to recover damages under the laws of this state.
    On the trial, at the conclusion of plaintiff’s testimony, upon motion of the defendant, the trial court instructed the jury to return a verdict for the defendant company. The court of appeals affirmed the judgment below, on the ground that the cause of action vested solely in the widow of Fred H. Garrard, deceased, and. that she having died, after her husband, without suit being commenced in her behalf, the administrator could not maintain an action on behalf of the husband’s parents and brothers and sisters. The administrator now prosecutes error to this court.
    
      Mr. Harry C. Gahn; Mr. Warren Thomas and Mr. John J. Sullivan, for plaintiff in error.
    
      
      Messrs. Fillius & Fillius and Messrs. Harrington, DeFord, Heim & Osborne, for defendant in error.
   Jones, J.

The record fairly discloses that the life of the husband was extinguished at the time of the collision, and that the wife survived him for a period of approximately two hours. Evidently this fact was a predicate for the adverse judgments of the courts below. The court of appeals held that the cause of action vested solely in the widow of Fred H. Garrard, and that she having died, after him, without suit commenced on her behalf, the cause of action thereby abated and could not be instituted on behalf of the husband’s parents and next of kin.

This form of action could not be instituted under the common law, and if any remedy exists it must be sought for in the statutes of this state. Section 10770, General Code, provides for a liability against a corporation or person causing the death of another, in all cases where the party injured had the right to m'aintain an action to recover damages if death had not ensued. Section 10772, General Code, provides as follows:

“Such actions shall be for the exclusive benefit of the wife, or husband, and children, or if there be neither of them, then of the parents and next of kin of the person whose death was so caused:
“It must be brought in the name of the personal representative of the deceased person and 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.”

The legal phase of the question involved depends upon the construction of the section quoted. In its construction there is no doubt in our mind that the legislative purpose was to provide recovery for the class existing at the time the action is brought. Two classes are provided by that section for whose benefit the suit may be instituted: first, the wife or husband and children; and, second, in lieu of their existence, the action shall be for the exclusive benefit of the parents and next of kin of the deceased.

The view of the court of appeals was “that the cause of action vested solely in the widow.” The statute does not so provide. In fact the statute expressly provides that the right to enforce the liability is lodged in the personal representative of the deceased person. By force of this statute the right to enforce the liability is not placed in the beneficiary. Such being the case, under the explicit language of the section there is no doubt but that the legislative purpose was to provide an existing class thereunder who should respond at the time the personal representative instituted his suit.

This section distinctly provides not only that the action must be brought in the name of the personal representative, but that the jury may give damages to those, “respectively, for whose benefit the action was brought.” While it is not necessary to decide the point in this case a query might well arise whether, even if the action had been brought during the lifetime of the widow, and her death liaving subsequently occurred, the action could not proceed to judgment by substitution of the class succeeding to the rights of the first and favored class; and this view finds support not only in the language of the statute, but also in the case of Doyle, Admx., v. The Baltimore & Ohio Rd. Co., 81 Ohio St., 184. This case is relied upon by counsel for the defendant in error in support of the judgments below. That case differs from the present case in two important particulars. In the first place, in that case, action was actually begun in favor of the favored beneficiary before her death. Here it was not. In the second place, it distinctly appears that after the death of said widow, when the action was pending, there remained to the husband, John H. Doyle, neither children, parents or next of kin, and no “statutory beneficiary for whose behoof the action could be maintained.” It is apparent, therefore, that, had the husband in that case left next of kin for whose benefit action might have been maintained under the statute, the judgment would have been otherwise.

The chief purpose of the wrongful death statute is to provide not only for a survival of the action, but for payment to the beneficiaries named in the statute; and to the class of beneficiaries existing at the time of bringing the action by the personal representative.

Decisions of courts of various states have been brought to our notice; but, since the right to bring this character of action is concededly statutory, and those decisions necessarily depend upon the construction of the statutes specially provided in those states, they are of little assistance. We have no doubt that the Ohio statute requires the construction that we have given it, and since the statute of South Carolina is substantially similar to that of this state we shall allude only to the case of Morris v. Spartanburg Ry., Gas & Elec. Co., 70 S. C, 279, wherein the syllabus and the opinion of Mr. Justice Jones support the construction we have given to the Ohio statute.

The case of Hammond, Admx., v. Lewiston, A. & W. St. Ry. Co., 106 Me., 209, does support the construction claimed by counsel for defendant in error; but we are unable to agree with the principle there announced, that the cause of action vests immediately at the time of the death of the injured party. We think that our statute does not vest the cause of action in any particular class existing at that time, but that the cause of action, or the right to enforce liability, is distinctly vested in the personal representative of the deceased person in behalf of the class existing ydien the right is enforced by suit instituted by such representative.

The judgments of the court of common pleas and the court of appeals are reversed and the cause remanded to the former for further proceeding according to. law.

Judgments reversed.

Nichols, C. J., Matthias, Johnson, Donahue, Wanamaker and Robinson, JJ., concur.  