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Ramsey v. Neiman6/29/1994
WRIGHT, J.
The question presented is whether a wrongful death action may be brought under R.C. Chapter 2125 by a person who has not been appointed by a court to be the decedent's personal representative. We answer the question in the negative and affirm the judgment of the court of appeals.
The answer to the question presented in this case depends on the meaning of the phrase "personal representative" in R.C. 2125.02(A)(1). The applicable language of R.C. 2125.02(A)(1) has remained virtually unchanged since the date the statute was originally enacted in 1851. When first enacted, the statute provided: "Sec. 2. Every such action shall be brought by and in the name of the personal representatives of such deceased persons * * *." (Emphasis added.) 49 Ohio Laws 117. The current version states: "an action for wrongful death shall be brought in the name of the personal representative of the decedent * * *. (Emphasis added.) Because the language pertinent to the present case has not changed since 1851, we may determine the meaning of "personal representative" by examining the definition of the phrase when the statute was first enacted.
During the latter part of the nineteenth century the phrase "personal representative" meant "executor" or "administrator." At least three American law dictionaries in use around this time and one treatise on the law of torts defined the phrase in this manner. Volume 2 of the 1876 edition of Bouvier's Law Dictionary at 327 defines "personal representatives" as "the executors or administrators of the person deceased." Volume 2 of the 1879 edition of Abbot's Law Dictionary at 274 defines the phrase as follows: " means the executor or administrator, and does not include the widow. * * * It means executors or administrators, and not heirs or devisees of land." The 1893 edition of Kinney's Law Dictionary and Glossary at 522 defines the phrase to mean only "executors or administrators." Finally, the editor of a treatise on torts, commenting on the meaning of the phrase "personal representative" in various wrongful death statutes, says, "It is, however, important to note that the term 'personal representative' employed in these statutes, means the executor or administrator of the deceased, and not his next of kin." Pollock on Torts (Webb Ed.1894) 81 (citing cases).
When a word or phrase is not defined in a statute it is fair to assume that the legislature meant for the word or phrase to be given its ordinary meaning. As a result, we can conclude that in 1851 the General Assembly intended the phrass"personal representative" to include only executors and administrators, for that seems to have been the accepted definition of the phrase. And during that time period-like today-a person could not become an executor or administrator until a probate court appointed the person as such. See Swan, A Manual for Executors and Administrators in the Settlement of the Estates of Deceased Persons: With Practical Forms, Etc. (4 Ed.1855) 1. The inference is clear. The 1851 General Assembly understood (and therefore intended) that the person bringing the wrongful death action would be appointed by a probate court.
Our conclusion in this regard is supported by the language of England's Lord Campbell's Act (Fatal Accidents Act, 1846), which formed the basis for Ohio's wrongful death statute. Lord Campbell's Act, passed by Parliament in 1846 to abrogate the common-law rule that no action could be maintained against a person who wrongfully caused the death of another, permitted only executors or administrators to bring the new cause of action in wrongful death. The Act provided in pertinent part:
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