Statement of the Case.

cuit court was affirmed, and the case was remanded to the court of common pleas for further proceedings according to law. After the case again reached the court of common pleas, the railroad company obtained leave to file a supplemental answer, which was done, and that answer is:

"The defendant, The Baltimore & Ohio Railroad Company, by way of supplemental answer to the original answer filed herein, avers that since the reversal of the judgment in favor of the plaintiff herein, heretofore rendered by this court, and while there was no judgment in favor of the plaintiff herein, the said Mary Doyle, who was the widow and sole heir at law and sole next of kin of the said John H. Doyle, deceased, died, leaving no heirs or next of kin entitled to any benefits of this action, and that there is now no statutory beneficiary entitled to receive any of the proceeds of this action. Wherefore this defendant asks that this cause may be dismissed and that it may go hence without day and recover its costs herein."

To this supplemental answer the following reply was filed: "The plaintiff, for reply to the supplemental answer of the defendant, admits that since the reversal of the judgment in favor of the plaintiff herein, and while there was no judgment in favor of the plaintiff, the said Mary Doyle, who was the widow of the said intestate, died, but the plaintiff denies all and singular the other allegations of said supplemental answer. The predicate of this denial is the fact, that there was left surviving said Mary Doyle, her mother, her sole heir and next of kin, who is still living, and several collateral heirs and next of kin of said John

Argument for Defendant in Error.

H. Doyle, who are still living. Wherefore plaintiff asks judgment as in the petition."

To this reply the railroad company demurred and the court of common pleas sustained the demurrer. The plaintiff below not desiring to further plead, final judgment was rendered in favor of the defendant. On error, this judgment was affirmed by the circuit court.

Error is prosecuted in this court to reverse both judgments.

Mr. T. E. Powell and Mr. Selwyn N. Owen, for plaintiff in error, cited and commented upon the following authorities:

Russell v. Sunbury, 37 Ohio St., 273; Coal Co. v. Smith, Admr., 53 Ohio St., 313; Coffman, Admr., v. Finney, Admr., 65 Ohio St., 61; Railway Co. v. Brooks, 81 Ill., 245; Thompson on Negligence, Section 7020; Sanders' Admx. v. Railroad Co., 111 Fed. Rep., 708; Railroad Co. v. Bean, 94 Tenn., 388; Boyd v. Cambridge, 4 C. C., 519; Waldo v. Goodsell, 33 Conn., 432; Sections 4975, 5144 and 6135, Revised Statutes.

Messrs. Booth, Keating, Peters & Pomerene; Mr. F. A. Durban and Mr. R. J. King, for defendant in error, cited and commented upon the following authorities:

Railway Co. v. Van Alstine, 77 Ohio St., 395; Steel v. Kurtz, 28 Ohio St., 191; Davis v. Justice, 31 Ohio St., 359; Weidner v. Rankin, 26 Ohio St., 523; Russell v. Sunbury, 37 Ohio St., 372; Railway Co. v. Brooks, 81 Ill., 245; Conant v. Griffin, 48 Ill., 410; Railroad Co. v. Bean, 94 Tenn., 388,

Opinion of the Court.

29 S. W. Rep., 370; Railway Co. v. Lilly, 90 Tenn., 565, 18 S. W. Rep., 243; Loague v. Railroad Co., 91 Tenn., 458, 19 S. W. Rep., 430; Dillier v. Railway Co., 72 N. E. Rep., 271; Waldo v. Goodsell, 33 Conn., 432; Goodsell, Exr., v. Railroad Co., 33 Conn., 51; Sanders' Admx. v. Railroad Co., 111 Fed. Rep., 708; Section 29, Thornton's Annotated Civil Code of Indiana; Sections 283 and 284, Burns' Annotated Indiana Statutes; Section 4569, Shannon's Annotated Code of Tennessee; Sections 4975, 5144, 6134 and 6135, Revised Statutes.

PRICE, J. The original action in the court of common pleas was brought under favor of Sections 6134 and 6135, Revised Statutes. The former section gives a right of action to the personal representative of a person whose death has been caused by the wrongful act, neglect or default of another, and the latter section prescribes for whose benefit the action may be brought and maintained, in the following terms: "Every such action shall be for the exclusive benefit of the wife, or husband and children, and if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the personal representative of the deceased person; and in every action the jury may give such damages, not exceeding in any case, ten thousand dollars, as they may think proportioned to the pecuniary injury resulting from such death, to the persons respectively for whose benefit such action shall be brought."

Doyle, whose death was caused, left as his widow Mary Doyle, who became administratrix of his

Opinion of the Court.

estate and as such brought the suit, but he left no children, and the action was for the sole and exclusive benefit of the widow, and there was a recovery in the court of common pleas. The circuit court reversed the judgment of the court of common pleas. The plaintiff brought error in this court and prayed for a reversal of the judgment of the circuit court and an affirmance of that of the court of common pleas. While the case was pending in this court, the plaintiff in error, Mary Doyle, the widow and administratrix, died, and the action was revived in the name of James M. Ottinger as the administrator de bonis non of estate of John H. Doyle, deceased, and on hearing in this court the judgment of the circuit court was affirmed, and the cause remanded to the court of common pleas for further proceedings. When the case again reached that court, the railroad company, on leave given for that purpose, filed a supplemental answer, which appears in the statement preceding this opinion, to which a reply was filed, which also appears in said statement.

By these two pleadings, a new and important. issue is made, not so much an issue of facts as of law, for the demurrer to the reply challenges the right to further maintain the original action. The supplemental answer discloses the fact occurring in the history of the litigation, that after the judgment in the court of common pleas had been reversed and while there was no judgment in her favor, Mary Doyle, the widow, for whose exclusive benefit the suit was brought, died. In the absence of children, she, at the death of her husband, became his sole next of kin. This supple

Opinion of the Court.

mental answer proceeds to say that aside from said. widow, the husband left "no heirs or next of kin entitled to any of the benefits of the action, and that there is now no statutory beneficiary entitled to receive any of the proceeds of this action." On this ground the railroad company asks that the action be dismissed and that it be allowed go hence.

to

The reply admits the death of the widow while there was no judgment in her favor, but denies all the other allegations of the new answer. But the reply says, "The predicate of this denial is the fact that there was left surviving the said Mary Doyle, her mother, her sole heir and next of kin, who is still living, and several collateral heirs and next of kin of said John H. Doyle, who are still living. Wherefore plaintiff asks judgment as in the petition." It is not alleged that John H. Doyle left either parents or their next of kin.

The lower courts held this reply bad on demurrer and we concur in the holding. We must not lose sight of the status of the case made in the original petition that the action was for the exclusive benefit of Mary Doyle, the widow. There were no children. If she had maintained the judgment she once recovered, and afterwards died before its collection, a very different question might appear. It might then be, as it is now claimed by plaintiff in error, on the present issue, that such judgment being valid in all respects, "is property," and might for that reason pass to the mother or next of kin of the widow. But there was no judgment in her favor when she died, for the reversal of her judgment by the circuit court left her a mere right of