independent right of action to be enforced by the administrator for the benefit of the next of kin with the right to recover damages for their pecuniary loss sustained by the decease of the injured person? It is the insistence of counsel that such was not the intention. The sections quoted, it is urged, do not at least in language undertake to preserve from abatement causes of action for injuries to the person where the injured person dies directly in consequence of the injuries inflicted, and, when it is remembered that in the same Act provision is made for a right of recovery for the benefit of those named in section 6135, it becomes apparent that the General Assembly only intended to preserve causes of action where the injured person died from a cause other than that of the injuries inflicted. If the intention had been otherwise, the addition of a very few words would have made that intention clear. It results from this that, taking the sections all together, the real purpose was to provide that, where a party is injured by such wrongful act and dies directly in consequence thereof, his cause of action abates, and that eo instanti a cause of action arises and vests in the persons named in the statute to be prosecuted by the administrator for their sole benefit; and, if the injured party has commenced an action upon his cause of action, and pending that dies in consequence of his injuries, his action abates, and, if the injured party dies from a cause other than his injury, his cause of action survives, and may be prosecuted by his administrator, or, if he has commenced an action upon his cause of action and dies pending the action from a cause other than his injury, his action may be revived in the name of and be prosecuted to final judgment by his administrator, and that, if he dies and his administrator commences and prosecutes to final judgment an action upon his cause of action, and receives payment of such judgment, or if he dies pending an action which he has brought against the wrongdoer, and the action is revived by order of the Court in the name of the administrator and prosecuted to final judgment which is fully paid, then and in that event, the record of such action is conclusive upon the administrator in an action brought by him against the wrongdoer under favor of sections 6134, 6135, Rev. St. 1906, upon all questions necessarily involved in that action, and, among others, upon the question that he, the decedent, did not die in consequence of the wrongful act, neglect, or default of the wrongdoer.

These propositions are urged by an ingenious and persuasive argument, and a number of authorities are called to our attention which, to a greater or less extent, tend to support the claims of counsel, some of which will be here referred to. It is presumed that in the main the statutes involved giving a right of action for the benefit of the next of kin are similar to the statutes of this State. Legg, Adm'r, v. Britton, 64 Vt. 652, 24 Atl. 1016, was an action for the benefit of the widow and next of kin for the wrongful act of defendant resulting in the death of plaintiff's intestate. The defendant pleaded that the intestate in his lifetime began suit for the same neglect and deceased while the suit was

pending, and that the administrator prosecuted the same to judgment which was paid. The plaintiff replied that the damages recovered and paid in that suit were for the injuries done the intestate during his lifetime, and did not include the damages occasioned by his widow and next of kin by his death. The Court sustained a demurrer to this reply, and held such judgment a bar to a second suit, although the damages awarded in the first suit were solely for the injuries to the deceased person in his lifetime. In Littlewood, Adm'x, v. Mayor, etc., 89 N. Y. 24, 42 Am. Rep. 271, it is held that when one injured by the wrongful act of another brings suit and recovers damages, in case death subsequently results from the injury, his personal representative cannot maintain an action; the object of the statute being not to impose a double liability, but simply to give a right of action where a party, having a good cause of action, was prevented by death resulting from the injury from enforcing his right or omitted in his lifetime so to do. In Lubrano, Adm'r, v. Atlantic Mills, 19 R. I. 129, 32 Atl. 205, 34 L. R. A. 797, it is held that the actions for damages to the person which survive are such only as are for injuries not resulting in death, and in cases where death results from the injury the only remedy is an action for damages for such injuries as might have been maintained at common law had death not ensued. In Hill v. Pennsylvania Ry. Co., 178 Pa. 223, 35 Atl. 997, 35 L. R. A. 196, 56 Am. St. Rep. 754, it is held that under the statutes of Pennsylvania a widow has no independent right of action for the death of her husband caused by the negligence of another which the husband could not release in his lifetime after the injury. In Holton v. Daly, Adm'x, 106 Ill. 131, it is held that, under the statute of Illinois of 1853, which gives an action to the legal representative of a deceased person to recover damages in case the death of the intestate was caused by the wrongful act of another, the cause of action is the wrongful act causing the death, and not merely the death itself. In such case the declaration must aver and the proof show a wrongful act causing the death under such circumstances as would entitle him to maintain an action if death had not ensued. No damages can be allowed for the pain and suffering the deceased underwent, and his inability to attend to his affairs and for medical attendance and nursing, but only such as arise from pecuniary loss to the widow and next of kin. An action brought by the party injured, where injury results in his subsequent death before judgment, does not survive to his personal representative, but will survive if his death is from some other and different cause. In Martin, Ex'r, v. Railway Co., 58 Kan. 475, 49 Pac. 605, it is held that for an injury resulting in death an action can be maintained only for the next of kin. If death results from the injury, an action cannot be maintained for the benefit of the estate; but, where the injured person dies from other causes, an action for personal injury survives to the personal representative.

The foregoing conclusions of counsel seem reasonable deductions, providing it is assumed that the legislation of this State has not given

two distinct grounds of action where death results from the injuries. But that is the very question involved in this case. In support of the proposition that two rights of action are given, even though death results from the injuries, a number of authorities are called to our attention by the learned counsel for defendant in error, some of which will be here noticed. It is conceded that our death statute, so called (sections 61346135), is a substantial reproduction of the English statute known as Lord Campbell's Act. That Act has received construction by a number of adjudications by the Courts of that country. Leggott, Adm'r, v. G. N. Ry. Co., 1 Q. B. Div. 599, was an action to recover for negligence on account of inability to attend to business, loss of time, and expense incident to the injuries. Defence that after the death plaintiff as L.'s administrator, for the benefit of the wife and children, sued defendant in respect of the injury caused to them by his death, and recovered. Held, that the second action was not barred by the judgment; that, although the administrator nominally is the plaintiff, yet is not suing in the two actions in the same right, the present one being for the benefit of the estate of the deceased, while the former action was under the statute and for the benefit of the persons therein named. . . . In Robinson v. C. P. Ry. Co. (1892), A. C. 481, the House of Lords held that the action authorized by Lord Campbell's Act is a different action from that which might have been maintained by the deceased if he had survived, and is a new action given by the statute. Without citing further cases, it may be safely assumed that the settled law of England to-day is in consonance with these adjudications. Coming now to adjudications in our own country, we find many which in substance are of like import. In Whitford v. P. Ry. Co., 23 N. Y. 465, it is held that the statutes are not simply remedial, but create a new cause of action in favor of the personal representative which is wholly distinct from and not a revivor of the cause of action which, if he had survived, he would have for his bodily injury. In V. & M. R. Co. v. Phillips, Adm'r, 64 Miss. 693, 2 South. 537, it is held that an administrator may maintain any personal action which the decedent might have prosecuted; including damages for an injury inflicted by a railroad company which resulted in the death of such decedent, and such right of action is distinct from and independent of the right given by statute to the next of kin to recover for the death of the person caused by the wrong of another. . . . In Hedrick v. I. R. & N. Co., 4 Wash. 400, 30 Pac. 714, it is held that under the statute of Washington a father may maintain an action for the death of his child, although the administrator of the child's estate may have theretofore recovered judgment against the same defendant for causing the child's death by wrongful act or neglect. In Bowes v. Boston, 155 Mass. 344, 29 N. E. 633, 15 L. R. A. 365, it is held that an administrator of a person injured by defect in the highway, who after an interval dies of his injuries, may maintain an action to recover for the injuries for the benefit of the estate, and at the same time a second ac

tion for the loss of life for the benefit of the widow and children or next of kin. In Brown, Adm'r, v. C. & W. Ry. Co., 102 Wis. 137, 77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579, it is held that the liability created by the statutes of Wisconsin in the case of the death of a person by an actionable injury for which such person could have recovered damages if death had not ensued is for the benefit of certain relatives named in the statute. Actions for injuries to the person survive, although death ensue from the injury. Such action is separate and distinct from the loss to surviving relatives; and, if a person die from the effects of an actionable personal injury, not having received satisfaction for his damages, action therefor for the benefit of his estate may be prosecuted to satisfaction after his death. Without quoting from or citing other cases, it is safe to say that the preponderance of judicial decision in this country favors the proposition of two independent rights of action.

Coming to our own State, we find that questions analogous to those involved in this controversy have been before this Court in a number of cases. The general nature of the action authorized by sections 6134 and 6135, and the character of the compensation justified, are quite fully and intelligently set forth in Steel, Adm'r, v. Kurtz, 28 Ohio St. 191. The same phases are emphasized in Russell v. Sunbury, 37 Ohio St. 372, 41 Am. Rep. 523, and the distinction between the ground of recovery where action is brought by the injured person and an action by a representative for the benefit of the next of kin is clearly set forth, and the plain inference would seem to be that the action by the representative for the next of kin is an independent right given by statute, and not af fected by an action by the same representative in the interest of the estate. The Court held in that case that the action abated by the death of the defendant. That decision was rendered in 1881. Coming to amend the statute respecting the survival of pending actions and of causes of action a few years after this decision, the General Assembly then provided (90 Ohio Laws, p. 139) that causes of action for injuries to the person should survive, and further provided that, where a deceased defendant would have been liable had he lived, his executor or administrator shall be liable, and any judgment recovered shall be a valid claim against the estate. Had the opinion in the above-cited case not been in accord with the intent of the law-making body as already expressed in the statutes, it would have been a most natural thing to amend the stattute also in that particular. No such amendment appears. On the contrary, the right of the administrator is made more ample. But, beyond this, the above-mentioned Act, entitled "An Act to amend sections 4075, 5144, and 6134 of the Revised Statutes," is a re-enactment of those sections, except as hereinbefore stated, and except that the words "assault, or assault and battery" are left out of section 5144. The Act comes to us, therefore, as the last expression of the legislative will. In one section, recognizing the common-law right of action for wrongful injuries to person, it extends the remedy, and in another section accords a sepa

rate and independent right in favor of the persons named in the statute. Is it not reasonable to conclude that had it been the intention to cause a recovery in one case to be a bar to a recovery in the later case some expression of that purpose would have been given? . . .

It is manifest from the foregoing that the revived action and the later action are not the same. They rest primarily upon the same alleged negligence of the defendant and the same absence of contributory negligence of the injured person; but in the revived action the damages are for personal injuries to the injured person for which an action would lie if death had not ensued, and such damages to inure when recovered to the benefit of the estate, while in the later action the suit is prosecuted in the interest of other parties and the measure of damages is the pecuniary loss they have sustained by the death. In the latter case death gives the right of action under the statute; while, had the pending action not been susceptible of being revived, the death would have terminated the right to recover in the interest of the estate. Another significant distinction should be observed. In a suit by the injured party there is no limit by statute to the amount of recovery, and as to the time for commencement of suit the action is controlled by the general statute of limitations, while in the suit for those named in section 6135 the damages cannot exceed $10,000, and the action must be commenced within two years after the death of the deceased person. It is insisted that these sections of the statute are innovations upon the principles of the common law, and should be strictly construed. This is true and the rule is recognized, but the policy and purpose of the statute are not to be ignored, and if they can be gathered, as we think they can, from the language used, it is the duty of Courts to uphold and enforce them. It may be readily conceded that the sections, taken as a whole, are not free from ambiguity. But if one expects to find the statute laws perfect and harmonicus, and free from all ambiguity, that person will be sadly disappointed. . . .

It is insisted, further, that the theory of two causes of action will necessarily result in the assessment of double damages, at least in part, and this is emphasized by the learned judge who delivered the opinion in Holton v. Daly, 106 Ill. 131, supra. We are not able to perceive that this in practice would prove a very serious situation. At least, the eminent jurist who presided in the Common Pleas at the trial of the revived action seemed to have no difficulty in giving to the jury a rule as to damages, which, as it seems to us, would not embarrass the question of a proper rule of damages to be given the jury upon the trial of the second. action. The objection is a plausible one. We are not impressed that it is sound. At least, it cannot avail if the right to a second action where death results from the injuries is given by the statute.

After much reflection and an extended examination of authorities, we are reasonably satisfied that, under the sections of the statute quoted, the personal representative is given the right to maintain an action for the benefit of the persons enumerated in section 6135, commonly denom