In fact, as a prerequisite to being able to maintain a cause of action in Ohio for a wrongful death occurring in a foreign state, this amendment to the wrongful death statute requires that the foreign state must permit wrongful death claims to be filed in its own courts. Baltimore O.R.R., 73 Ohio St. at 26, 76 N.E. 91; Fox v. Morrison Motor Freight, Inc., 25 Ohio St.2d 193, 196, 267 N.E.2d 405; cert. denied, 403 U.S. 931, 91 S.Ct. 2254, 29 L.Ed.2d 710 (1971). The Ohio Supreme Court has accordingly observed that the Ohio statute provides for the enforcement, rather than the creation, of "a right to sue for an alleged wrongful death occurring in another state."

It is instructive to examine the cases cited by the parties in their briefs on this conflict of law issue to determine when a state does have a significant governmental interest. In Fox v. Morrison Motor Freight, 25 Ohio St.2d 193, 267 N.E.2d 405 (1971), an Ohio resident was killed in Illinois in an accident with a tractor-trailer driven by an employee of an Ohio corporation. Defendants confessed liability so the only issue before the Ohio Supreme Court was whether Ohio or Illinois law should apply in limiting the amount of damages recoverable. In abandoning the automatic application of locus lex delicti, the Ohio Supreme Court undertook a weighing of governmental interests.

Ohio courts apply the rule of lex loci delicti, tempered with considerations of public policy and governmental interests. Michell v. General Motors Corp., 439 F. Supp. 24, 27 (N.D.Ohio 1977); Moats v. Metropolitan Bank, 40 Ohio St.2d 47, 49, 319 N.E.2d 603, 604 (1974), Schiltz v. Meyer, 29 Ohio St.2d 169, 171, 280 N.E.2d 925, 926-27 (1972); Fox v. Morrison Motor Freight, Inc., 25 Ohio St.2d 193, 267 N.E.2d 405, cert. denied, 403 U.S. 931, 91 S.Ct. 2254, 29 L.Ed.2d 710 (1971). That the plaintiffs, if the Court should decide to apply the law of Canada and its provinces, might have less of a chance to recover damages or prevail on the merits than under Ohio law, is not a factor that the Court may ordinarily consider in determining what law to apply.

In order to have a cause of action in Ohio for a wrongful death occurring in a foreign state, the statute requires that a cause of action lie in the foreign state. Baltimore Ohio R.R., 73 Ohio St. at 26; Fox v. Morrison Motor Freight, Inc. (1971), 25 Ohio St.2d 193, 196, cert. denied, 403 U.S. 931. The Supreme Court of Ohio has accordingly observed that the Ohio statute provides for the enforcement, rather than the creation, of "a right to sue for an alleged wrongful death occurring in another state."

The mechanical application of the rule of lex loci delicti has also been abandoned where residents of Ohio instituted wrongful death actions in Ohio courts, even though the place of injury was a foreign state. The Supreme Court of Ohio has held that the administration of the estates of deceased Ohio residents is a direct concern of the state and, therefore, that applying the rule of lex loci delicti would violate the legislative policy of Ohio. Moats, 40 Ohio St.2d at 47, 319 N.E.2d 603; Fox v. Morrison Motor Freight, Inc., 25 Ohio St.2d 193, 267 N.E.2d 405 (1971). Defendants make the following factual assertions which appear to be uncontroverted.

The Ohio conflict of law rule for torts generally follows the rule of lex loci, or the law of the place of injury. See, Ellis v. Garwood, 168 Ohio St. 241, 152 N.E.2d 100 (1958); but see, Fox v. Morrison Motor Freight, Inc., 25 Ohio St.2d 193, 267 N.E.2d 405 (1971). An action for wrongful death is a statutorily created tort action.

See Collins v. McClure, 143 Ohio St. 569, 56 N.E.2d 171 (1944); Freas v. Sullivan, 130 Ohio St. 486, 200 N.E. 639 (1936); Lyons v. Lyons, 2 Ohio St.2d 243, 208 N.E.2d 533 (1965). However, in the recent cases of Fox v. Morrison Motor Freight, 25 Ohio St.2d 193, 267 N.E.2d 405 (1971) and Schiltz v. Meyer, 29 Ohio St.2d 169, 280 N.E.2d 925 (1972), the Ohio Supreme Court has adopted a more flexible approach in this conflict of laws area. While not totally abandoning the lex loci delicti rule, Ohio now tempers it with evaluation of the competing governmental interests. Thus, in Fox v. Morrison Motor Freight, supra, although the accident occurred in Illinois, that state had no governmental interest in limiting damages recoverable by an Ohio resident where neither party to the action was an Illinois resident and the question of damages was the sole issue in the case.

We recognize Ohio's important interest in the litigation. Fox v. Morrison Motor Freight, Inc. (1971), 25 Ohio St.2d 193, 54 O.O. 2d 301, 267 N.E.2d 405, certiorari denied (1971), 403 U.S. 931. Ohio's wrongful death statute, R.C. 2125.01, in part specifies: "When death is caused by a wrongful act, neglect, or default in another state or foreign country, for which a right to maintain an action and recover damages is given by a statute of such other state or foreign country, such right of action may be enforced in this state. * * *"

We have considered the rule of lex loci delicti in many previous cases. Freas v. Sullivan (1936), 130 Ohio St. 486; Collins v. McClure (1944), 143 Ohio St. 569; Ellis v. Garwood (1958), 168 Ohio St. 241; Lyons v. Lyons (1965), 2 Ohio St.2d 243; Fox v. Morrison Motor Freight (1971), 25 Ohio St.2d 193, 195; Seeley v. Expert, Inc. (1971), 26 Ohio St.2d 61. If it was our policy to automatically apply this rule, disposition would be simple, for there is no dispute as to where the accident occurred, or as to the resident state of the litigants herein. It is this ease of application which is most cited as the reason for continued usage of the lex loci delicti rule, and, in view of the high degree of congestion in the courts today, it is an end to be sought.

We agree. In Fox v. Morrison Motor Freight (1971), 25 Ohio St.2d 193, 267 N.E.2d 405, the Ohio Supreme Court expressly rejected the idea that R.C. 2125.01 was intended to impose the law of a foreign state upon Ohio courts when the relationship of Ohio with the litigation was superior to that of the foreign state. The court in Fox explained that the limited purpose of the statute was to make clear that the Ohio administrator could maintain, in Ohio, an action based upon another state's wrongful-death statute: "The simple meaning of the above-quoted provision of R.C. 2125.01 is that a right to sue for an alleged wrongful death occurring in another state may be enforced in the courts of Ohio."