Argued on rehearing September 8; former opinion and judgment of circuit court reversed September 15, 1942 ON REHEARING 128 P.2d 956 ON REHEARING.
REVERSED. In our former opinion herein, it was pointed out that the action was brought by the personal representative of the deceased for the benefit of her estate; that the case was tried in the circuit court on the theory that recovery, if any, would be for the benefit of the decedent's estate; and that our decision was based on that theory. It was further pointed out in that opinion that in 1939 the legislature amended § 5-703, Oregon Code 1930, by chapter 466, Oregon Laws 1939, and that the act as so amended (now codified as § 8-903, O.C.L.A.) gives a right of action to the personal representative of a decedent "for the benefit of the widow or widower and dependents and in case there is no widow or widower, or surviving dependents, then for the benefit of the estate of the deceased".
In the circuit court the defendant demurred to the complaint on the general ground that it did not state facts sufficient to constitute a cause of action; but the *Page 315 record fails to show the reasons assigned by him, on presenting the demurrer, for contending that the complaint was insufficient. The demurrer was overruled. On rehearing the defendant has raised in this court for the first time the question of the sufficiency of the complaint. He now urges that the complaint fails to show any right of action whatever in favor of the personal representative of the decedent for the benefit of her estate. The objection that a complaint does not state facts sufficient to constitute a cause of action or suit is never waived: § 1-710, O.C.L.A. And according to rule 2 of this court (9 O.C.L.A., page 317), such objection may be taken at any time. We shall therefore now consider the sufficiency of the plaintiff's statement of his cause of action.
Frank P. Ross as administrator of the estate of Lyna M. Ross, deceased, brought the action for the benefit of that estate, and the only allegation of damage concerns loss to the decedent's estate. The complaint fails to state whether the deceased left any surviving spouse or dependents.
The answer alleges that Frank P. Ross was the husband of the decedent and was operating the automobile in which she was riding at the time she was injured. That allegation is admitted by the reply.
Section 8-903, O.C.L.A., under which this action was brought, thus reads:
"When the death of a person is caused by the wrongful act or omission of another, the personal representative of the former for the benefit of the widow or widower and dependents and in case there is no widow or widower, or surviving dependents, then for the benefit of the estate of the deceased may maintain an action at law therefor against the latter, if the former might have maintained an action, had he lived, *Page 316 against the latter, for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and damages therein shall not exceed $10,000."
By force of the statute, an action brought for damages caused by the wrongful act or omission of another must be instituted by the personal representative of the deceased, for any beneficiary. This statute is definite and certain as to when an action may be maintained by the personal representative of a decedent for the benefit of the decedent's estate. It specifies that "in case there is no widow or widower, or surviving dependents, then [the personal representative may maintain an action] for the benefit of the estate of the deceased". The right of action is statutory and is granted to the personal representative for the benefit of those specified in the statute in the order therein named. It is only in the event of the non-existence of preferred beneficiaries that there is a right of action in favor of other beneficiaries.
In Chicago, Burlington Quincy Railroad Company v.Wells-Dickey Trust Company, Administrator, 275 U.S. 161,72 L. Ed. 216, 48 S. Ct. 73, 59 A.L.R. 758, action was brought under the federal employers' liability act by the trust company as administrator of the estate of a deceased employee of the railroad for the benefit of a sister of the decedent, alleged to be dependent. When the injured workman died he left surviving him his mother, who died, however, before any administrator of his estate was appointed. The federal employers' liability act, as noted in the opinion therein, provides that every common carrier by railroad shall be liable for damages in the case of the death of its employee "to his or her personal representative, for the benefit of the surviving widow or *Page 317 husband and children of such employee, and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee". The court held that the sister was not entitled to damages, thus reasoning:
"The language of § 1 makes it clear that she is not. The cause of action as there expressed accrues to the widow and children, if either survives. It accrues to the parents if neither widow nor child survives. It accrues to the next of kin dependent upon the employe, only if there is no surviving widow, child or parent. There are, thus, three classes of possible beneficiaries. But the liability is in the alternative. It is to one of the three; not to the several classes collectively. * * *
"The cause of action accrues at the death [citing authority]. When it accrues, there is an immediate, final and absolute vesting; and the vesting is in that one of the several possible beneficiaries who, according to the express provision in the statute, is declared entitled to be compensated."
See also, in this connection: McFarland v. Oregon Electric Ry.Co., 70 Or. 27, 40, 138 P. 458, Ann. Cas. 1916B, 527; Melton v.Southeast Portland Lumber Co., 160 Or. 500, 85 P.2d 1038;Betz v. Kansas City Southern Ry. Co., 314 Mo. 390,284 S.W. 455; Butts v. City of Moultrie, 39 Ga. App. 685, 148 S.E. 278;Western A.R.R. v. Allgood, 41 Ga. App. 484, 153 S.E. 442;Horrell v. Gulf Valley Cotton Oil Co., 15 La. App. 603,131 So. 709; 16 Am. Jur., Death, § 107, page 76.
Lyna M. Ross, deceased, left surviving her Frank P. Ross, her widower. The only action that could have been brought by the administrator was one for the benefit of the widower and dependents, if any. No right of action for the benefit of the decedent's estate ever *Page 318 came into existence. Had the fact appeared from the face of the complaint that Frank P. Ross was the widower of the decedent, there is no question that the demurrer to the complaint would have been sustained, as it would have been manifest that no action could be maintained by the personal representative for the benefit of the estate of the deceased. Since that fact did not so appear, the question now arises whether it is necessary for the personal representative, in bringing an action for the benefit of a deferred beneficiary, to plead the non-existence of preferred beneficiaries. We believe that it is necessary. There is no right at common law to recover damages for death. The right exists only as conferred by statute. In the instant case an action could have been maintained for the benefit of Lyna M. Ross's estate only if the decedent had left no widower or dependents.
In order to maintain an action under the provisions of § 8-903, supra, for the benefit of a decedent's estate, the complaint must affirmatively show the non-existence at the time of the decedent's death of all the beneficiaries named in the statute ahead of the decedent's estate. Otherwise, the complaint does not show that any right of action exists for the benefit of the estate: Niemi v. Stanley Smith Lumber Co., 77 Or. 221,147 P. 532, 149 P. 1033; Betz v. Kansas City Southern Ry. Co., supra; Western A.R.R. v. Allgood, supra; Horrell v. Gulf Valley Cotton Oil Co., supra; O'Donnell v. Wells,323 Mo. 1170, 21 S.W.2d 762.
In our opinion, the complaint herein fails to state a cause of action. Had the answer alleged that Lyna M. Ross was, at the time of her death, an unmarried woman without dependents, and the reply had admitted that allegation or the evidence had disclosed *Page 319 such facts, a different question would be presented. In that event, the allegations of the complaint necessary to show that a cause of action existed for the benefit of the estate would have been supplied by subsequent pleadings or by the evidence.
It is argued by plaintiff that Frank P. Ross as an individual has waived his right as beneficiary, inasmuch as he is acting as administrator of his deceased wife's estate and is attempting, as such administrator, to recover damages on behalf of the estate. According to the statute the right of action for damages does not vest in a deferred beneficiary upon the failure of the primary beneficiary to assert his right, for the reason that the right of a deferred beneficiary depends wholly upon the non-existence of prior beneficiaries and not at all upon the failure of such beneficiaries to assert their rights.
The plaintiff also contends that the case was tried in the circuit court by both the plaintiff and the defendant on the theory that the estate of the decedent had the exclusive right of recovery, and that the defendant may not, on appeal, adopt a different theory. Regardless of the theory on which the case was tried in the circuit court, the defendant is not precluded from raising at any time the objection that the complaint does not state facts sufficient to constitute a cause of action. Not only so, but the evidence conclusively shows that no right of action ever accrued for the benefit of the decedent's estate.
The judgment appealed from is therefore reversed and the cause is remanded to the circuit court with instructions to set aside the judgment and sustain the defendant's demurrer to the complaint, and to entertain such further proceedings as may not be inconsistent with this opinion. *Page 320