dissenting in part: A cause of action for wrongful death is purely statutory, and the right to damages under the statute is statutory and conditional, and cannot be enforced except within the *307prescribed statutory limitations. The provision of the statute that the damages must inure to the “exclusive benefit of the surviving spouse and children, if any, or next of ldn, to be distributed in the same manner as personal property of the deceased” — disposes of property. The cause of action to recover the damages accrues when death occurs, and the interest of a beneficiary in those damages vests at that time. (White v. Atchison, T. & S. F. Rly. Co., 125 Kan. 537, 538, 539, 265 Pac. 73, 59 A. L. R. 749.)
In the present case the decedent left no surviving spouse or children. His parents, therefore, were his next of kin. There being no personal representative or surviving spouse, they, as next of kin, are authorized by the statute to sue for damages. Rut suppose, for example, we have a case where the next of kin consist of numerous nephews and nieces — scattered all over the country — and the whereabouts of many being unknown. One “local” nephew, as sole plaintiff, brings the action on behalf of the others for the “exclusive benefit” of all in the class. The “ramifications” of such a situation are obvious. Could he, for example, make a settlement with the defendant which would bind those not even parties to the action?
Notwithstanding that a negligent wrongdoer can be compelled to answer but once for a single wrongful death, it is my opinion that in a situation where there is no personal representative or widow, and the action is sought to be brought by the next of kin, all of them, as statutory beneficiaries of damages, are the real (and only) parties in interest, and, therefore, all are indispensable parties to the action. If for any reason all are not joined as plaintiffs — those not so joined should be made defendants — otherwise, it seems to me, it would behoove them — tire next of ldn — to secure the appointment of a personal representative of the decedent so that he, in such statutory capacity, can bring the action.
If, however, one of the class of next of kin can bring the action for the “exclusive benefit” of the class — as the court today holds— then I agree that such sole plaintiff should be permitted to sue for the maximum amount of damages allowed by the statute.
Schroeder and Jackson, JJ., join in the foregoing partial dissent.