Cook, J.,
delivered the opinion of the court.
The pleadings make the case here for review, and, omitting the formal parts, they are as follows:
“The plaintiff shows to the court that the defendant, the Southern Bailway Company in Mississippi, a corporation organized under the laws of the state of Mississippi, owns and operates a right of way, track, and locomotives from the city of Columbus to the city of Green-ville, Mississippi, running through aud across the county of Sunflower, in said state of Mississippi, which locomotives and cars, both passenger and freight, it operates for hire and reward; the persons offering to become passengers over its said road and on its said passenger trains paying the charges demanded by the said defendant company for their passage over its said road.
“The plaintiff further shows that she was the wife of the said James B. Hamel, in his lifetime, living with him in the town of Itta Bena, in the county of Leflore, state of Mississippi, through which the defendant company operates its said road; that on or about the 19th day of October, 1911, her husband, James B. Hamel, took passage on the passenger train of the defendant company known as No. 3, running from Winona to Greenville, Mississippi, boarding said train at Itta Bena, destined to Holly Bidge, in Sunflower county, Mississippi, which said [188]*188train passed Itta Bena at about seven -thirty o’clock a. m., and that he purchased a ticket at Itta Bena for Holly Bidge, and thereby became a passenger on the train of the defendant company and entitled to all the care, skill, and protection which conld be afforded by the defendant company while such passenger on its said passenger train.
“The plaintiff further shows that while en route from the said town of Itta Bena to the village of Holly Bidge, and about two miles east of Indianola, in the county of Sunflower, and while the train on which her said husband was a passenger was running, through the carelessness, negligence, and recklessness of the defendant company in the management and operation of its said passenger train on which the defendant was riding, her said husband, James B. Hamel, was violently thrown from the running cars of said, train, precipitated to the ground, and thereby breaking some of his limbs and otherwise bruising, injuring, and mangling his body to such an extent tha,t he soon died from the injuries received by him, and caused.by his being so violently thrown from the running train on which he was a passenger; his death being the direct result of the injuries received by him from the careless-, negligent, and reckless acts of the defendant company. The said defendant company, through its agents, -employees, and servants, disregarding the rights and safety of those who were passengers on its said passenger train, so carelessly, negligently, and recklessly operated said train, so as to cause the injuries so received by the said James B. Hamel, and from which said injuries he (the said Hamel), died,” etc.
To this declaration defendant interposed the following plea:
“And now comes the defendant and for further plea to the plaintiff’s declaration says actio non: Because, it says, that J. B. Hamel, for the damages for whose death this suit was instituted by plaintiff, in his lifetime, on [189]*189the 30th day of January, 1912, filed in this cout a declara-, tion against this defendant, in which said Hamel charged all of the facts that are, by the plaintiff, in her declaration, charged against this defendant, except that the said Hamel died as a result of the alleged wrongful act of this •defendant, and, on the facts so charged in said declaration, claimed, that he was damaged in the sum of twenty-five thousand dollars, for which he brought suit and demanded judgment against this defendant.
“In pursuance to the process of this court, duly executed, on this defendant, this defendant, on the 15th day of March, 1912, pleaded to the declaration so filed against it by the said James B. Hamel. Thereafter, on or about the 1st day of May, 1912, the said James B. Hamel died intestate, and afterwards, upon her application and on the-day of-, 1912, his wife, Mrs. Myrtle Hamel, the plaintiff in the above-styled cause was, by the chancery court of Sunflower county, Mississippi, duly appointed administratrix of the estate of the said James B. Hamel, and entered into bond and took the oath prescribed by law, and duly qualified as such administratrix •and entered upon the discharge of the duties required of her. Thereafter, on the 31st day of May, 1912, the said Mrs. Myrtle Hamel, the plaintiff, as such administratrix, filed in this court a motion to revive the cause of James B. Hamel against this defendant, referred to, in her name as such administratrix of the estate of James B. Hamel, deceased. Thereafter the said cause of James B. Hamel against this defendant, which was revived in the name of Mrs. Myrtle Hamel, the plaintiff, as administratrix of his estate, proceeded to trial on the issues presented by the pleadings filed in said cause, and resulted in the jury returning a verdict for the plaintiff in the sum of four thousand, five hundred dollars, upon which the judgment of the court was entered in favor of the plaintiff against this defendant. The cause filed by •James B. Hamel against this defendant, above referred [190]*190to, is styled ‘James B. Hamel versus Southern Railway Company in Mississippi,’ and numbered 2551 on the dockets of this court, and to the declaration, the process served on this defendant, the pleas field by this defendant, the motion to revive said cause in the name of Mrs. Myrtle Hamel as administratrix, the order of the court reviving* same, the ver.dict of the jury and judgment of the court, as the same appears on file and of record in said cause, reference is now made and the same asked to be taken and treated as a part hereof.
“The defendant avers that the wrongful act charged against this defendant by the declaration filed in the suit of James B. Hamel against it, numbered 2551, above referred to, is the same wrongful act charged against this defendant in this, the above-styled cause, but defendant avers that in the suit above referred to, filed by James B. Hamel, after it was revived and after the declaration was amended, it was not charged that the said Hamel’s death was caused by said alleged wrongful act; it being simply charged that he thereafter died.
“Wherefore, the defendant avers that because of the alleged wrongful act of this defendant, and by which it is claimed James B. Hamel was.injured, the said James B. Hamel, in his lifetime, brought suit ag’ainst this defendant in a court of competent jurisdiction, and which said suit was subsequently, on the death of the said James B. Hamel, revived and a judgment entered against this defendant in full for all damages alleged to have been sustained by the said James B. Hamel, because of said alleged wrongful act, and which judgment was duly entered at the time the declaration in the above-styled cause was filed. Therefore defendant further avers that at the time the declaration in the above-styled cause was filed, even if the facts alleged therein are true, the said James B. Hamel, because of the facts herein alleged,, could not have maintained an action against this defendant, if his death had not ensued, and therefore the plain[191]*191tiff ought not to have or maintain the aforesaid action against it; and this the defendant is ready to verify.”
To the foregoing plea plaintiff demurred as follows:
“Now comes the plaintiff, by her attorney, and demurs to the special plea filed in this cause by the defendant, and prays the judgment of the court if she shall further answer make thereto, and for cause of this demurrer she assigns the following:
“First. Said plea sets up no defense to the action of the plaintiff.
“Second. 'Said plea in the facts stated therein shows the present action to be separate and distinct from the cause of action set forth in cause No. 2551 on the docket of this court:
“Third. The cause of action stated in this case is separate and distinct from the cause of action stated in the cause styled Mrs. Myrtle Hamel, administratrix of the Estate of James JB. Hamel, Deceased, versus Southern Railway Company, in Mississippi, No. 2551.
“Fourth. The cause of action in the name of the widow of Jas. B. Hamel, deceased, for his death caused by the negligence of the defendant company, is separate and distinct from any cause of action of the administratrix or executrix of the estate of the said James B. Hamel, and the two causes of action cannot be joined.
“ Fifth. Said plea is’in contravention of section 721 and section 2091, Code of 1906.
‘£ Sixth. For other causes to be assigned on the hearing of this demurrer.”
The court overruled the demurrer of plaintiff to the special plea of defendant, and plaintiff refused to further plead to same whereupon the court dismissed the suit and plaintiff appeals.
In addition to the pleadings, the summary of the facts appearing in the brief of appellee will make clear the issue and the precise point for decision, and is here quoted, viz.:
[192]*192“In October, 1911, one James B. Hamel, the husband of appellant, while a passenger on one of appellee’s trains, in some unknown manner fell therefrom and suffered serious injuries. After his fall Mr. Hamel remained unconscious for some ten days, and was thereafter unable to give any account or make any explanation of how the accident occurred. He brought suit against appellee, in which he set up the facts of his falling from the train, and that he received injuries and suffered pain and anguish as the result thereof, and asked damages in the sum of twenty-five thousand dollars. Before the suit could be tried, he died, and appellant, having qualified as administratrix of his estate, upon her motion the circuit court of Sunflower county, where the case was pending, entered an order reviving it in her name as administratrix. Having been brought by Mr. Hamel in his lifetime, the declaration did not, of course, claim any damages for his death, and, after it was revived, no amendment was filed .claiming such damages. At the trial the plaintiff did not undertake .to show how the accident happened, but relied simply upon the statutory presumption of negligence, and recovered a judgment for four thousand, five hundred dollars. While no allegations was made in the declaration that Mr. Hamel’s death was caused by his injuries, the testimony showed that he suffered a steady decline in health from the time he was injured until his death. His attending physician, however, testified that the immediate cause of his death was pellagra, but that his death would not have occurred so soon but for the fact of his injuries.
An instruction was given at the instance of the defendant that no damages should be allowed, except those which were suffered by Mr. Hamel in his lifetime, and that nothing could be awarded on account of the damages suffered by his heirs at law because of his death. The judgment for four thousand, five hundred dollars was rendered on the 10th day of October, 1912, and four days later the present suit was instituted by appellant, as the [193]*193widow of James B. Mainel,' to recover such damages as she alleged were suffered by her by reason of his death, which was charged to have been caused by the injuries received by him as aforesaid. The appellee filed a plea of general issue and a special plea, setting up the institution by Mr. Hamel in his lifetime of the suit above referred to7, its revival in the name of Mrs. Hamel, as administratrix, and the recovery of the judgment for four-thousand, five hundred dollars. It alleged that the recovery in the former suit was had for and on account of precisely the same injuries which were declared upon in the second suit, and that the.pendency of the first suit, and the recovery of the judgment therein, was a bar to the second suit.”
Did the revivor and prosecution to judgment of the suit brought by Mr. Hamel, deceased, by his widow, as administratrix of his estate, bar the present action? The determination of this question can be reached-by a construction of all the statute law of this state. Section 721, Code of 1906, as amended by chapter 167, Acts 1908, comes in to play after the death of the party injured, where no suit had been brought by the deceased in his lifetime, and in that event the next of kin suing could, under this section, recover, not only their loss, but the loss suffered by the decedent and all damages to any and all parties interested in the suit. Under this section, the legal representatives of the deceased cannot sue, .unless the deceased did not have surviving him any of the next of kin mentioned in the act. Section 2091, Code 1906, gives to the legal representatives of décéásed persons the power to prosecute all suits at law or equity which the deceased might have prosecuted in his lifetime-. That section refers alone to suits' which might have been but were not commenced by the deceased. Section 2093, Code 1906, relates to cases where the deceased had begun a suit, but the suit had not reached a final judgment before his death. • .
[194]*194The action begun by Mr. Hamel' was covered by section 2093, and that action, of course, did not embrace damages • for his death, and, when it was revived in the name of his administratrix, it follows that the judgment could not have been for anything more than was recoverable by Mr. Hamel himself. In this case section 2091 has no application,' because the deceased could not have commenced and prosecuted this suit. We think that section 721, as amended, necessarily applies to the facts of this case, for the reason that by neither of the other sections could be damages here involved have been recovered.
Of course the widow could have qualified as administratrix and dismissed the suit brought by the deceased, but she could not, as. administratrix, have successfully prosecuted the present suit. She did, however, revive the suit begun by her husband and prosecute it to final judgment. She did not and could not in that suit recover damages for the death of Mr. Hamel. This present suit seeks to' recover damages for the death alone, and this is the cause of action to which section 721 has peculiar application, and this suit could not have been prosecuted by the administrator, and is therefore not affected by the suit which was prosecuted by the administrator.
As has been said by counsel for appellant, section 721 “is a post-mortem statute,” and applies to actions which could not have been brought by the deceased. Section 721 can never apply until there is a death, because it is a suit for damages for the death, which is given to the next of kin of the deceased, and, if begun by one of the class, no other suit can be brought£ £ for the death.5 ’ Ordinarily a suit brought under section 721 covers all the damages suffered by deceased .and by all other parties interested, but as all damages, except for the death and damages to the next of kin, have been recovered in the former suit, the.recovery in this case will be limited.,to damages which were not recoverable in the former case;
[195]*195It would seem that the legislature could not have had in mind a situation like the one presented by this record when it adopted sections 2091 and 2093 of Code of 1906. If we read section 721 alone, and leave out of consideration sections 2091 and 2093, it is not altogether clear whether this suit can be prosecuted under section 721, since the action begun by deceased embraced a part of' the damages ordinarily recoverable under that section;, but reading the several sections together, and considering the language employed in section 721, it seems clear that the legislature did have in mind a situation similar to the one presented here. This section does not say, as contended by distinguished counsel for appellee, that there should be but one suit for the damage or injury causing the death, but it does say that there shall be but one suit “for the same death.” We believe the legislature did not intend that a suit brought by deceased and finished by his administrator precluded his widow from bringing another suit for damages for his death which' were not recoverable in the first suit, and which are recoverable in this suit, merely because the damages recovered in the first suit are in a majority of cases sued for and recovered in-the same.case with damages for the death.
Reversed and remanded.
OPINION ON SUGGESTION 03? ERROR.
It is said, in the suggestion of error, that the cases are in accord upon the proposition that if the deceased, a,fter receiving an injury, enters into an agreement of settlement and release of liability therefor, it will bar an action by his personal representatives or next of kin to recover for death subsequently resulting from such injury. It is insisted if this postulate is conceded, it necessarily follows that the revival of the suit by the adminis[196]*196tratrix of the deceased, and the prosecution of same to final judgment by her, will also bar the present suit brought by her as widow of deceased, under section 721, Code 1906.
Legg v. Britton, 64 Vt. 652, 24 Atl. 1016, is cited to support the suggestion of error, and it undoubtedly does support it. In that case it is said:
“Although such,recovery should be by an executor or-administrator in a suit commenced by the intestate, or commenced by such executor or administrator, if the recovery be in the right of the intestate while living, such recovery, in the legal effect, would antedate the death of the intestate, exhaust his right of action, and nothing would remain to survive for a subsequent action.”
It seems clear to us that under our statutes no suit could have been maintained by the widow had the deceased settled his claim for damages in his lifetime, nor could this suit be maintained if the record showed that the suit brought by the deceased had been prosecuted to final judgment by the deceased. The reason for this conclusion is written into the statute itself. Section 721, Code of 1906. If the deceased had released the railway company in his lifetime, or if he had prosectued his suit to final judgment before his death, he would not have been entitled “to maintain an action and recover in respect thereof,” nor would his next of kin have had a right of action under such circumstances, because the right in the decedent to maintain the action is made a condition precedent for'that given by the statute to the next of kin. In this case, however, the deceased did not release.the railway company, nor did he prosecute to final judgment the suit brought by him. We think the statute (section 721) applies, because at the time of his death deceased had the right to prosecute a suit for damages for the injuries inflicted on him.
It will be noted that the supreme court of Vermont has twice decided the question here presented. In Need-[197]*197ham v. Grand Trunk Railway Co., 38 Vt. 294, the court discussed the question and came to a conclusion opposite to the decision in Legg v. Britton, supra. In the latter case it is said that the question was not involved in Needham v. Railway, and therefore'the comments of the court was obiter dictum. However that may be, we think the reasoning in Needham v. Railway Co. is sound, and we prefer to follow the same.
Leggott v. Great Northern Railway Co., 1 Q. B. Div. 599, we think, is in point and supports the original opinion in this case.
The statutes of the several states vary in language and the decisions of the courts construing particular statutes are not always helpful, but we are of opinion that the three sections of our Code, read as one act, give two causes of action in the circumstances we have here. If the deceased had not begun an action for his injuries, only one suit could have been maintained, and that suit is provided for by section 721. The deceased had begun a suit in his lifetime, and this suit was revived and finished by the administratrix, and included damages for the injuries, but did not cover damages for his death. The present suit is for damages for the death which could not have been recovered in the suit revived. In the original opinion we construed the several sections of our Code touching the matters in controversy, and endeavored to harmonize them.
To recapitulate, we held: (1) Section 2091 refers alone to suit which might have been but were not commenced by the deceased. (2) Section 2093 relates to cases where deceased had begun a suit, but had not ended before his death. The latter section was the section giving authority to the administrator to revive and prosecute the suit which had been brought by Mr. Hamel before his death. This section contemplated just the state of case find here. A suit had been started, but not ended, and it was the right of the administratrix, and probably it was her duty, to revive it.
[198]*198The suit brought by the decedent was maintainable under the common law/ but, without the statute, did not survive. Section 721 gives a cause of action which did not exist at common law, and when there are surviving the deceased next of kin of the classes named in the statute, and no suit is pending at the time of the death, only the next of kin can prosecute the suit.
Section 2093 does not confer upon the administrator the power to bring a suit — it merely gives the right to revive a suit. The suit revived here did not include damages for the death. Under section 2091 the administrator could not have instituted the suit, which was revived because section 721 provides that this cannot be done where there are surviving next of kin named in the statute. So it is, section 2091 has no application to the facts of the instant case. In the first.case the administratrix was the widow, and the plaintiff in the present case is the widow. Suppose the administrator had been some one other than the widow, can it be said that the administrator could not have revived and prosecuted the suit begun by decedent, because there was a widow! We think not. We think the creditors of deceased, if he had any, were interested in and had a right to have the suit prosecuted for their benefit. If this is true the revival of the suit brought by the deceased before his death would nullify section 721 of the Code of 1906, if the position taken by the suggestion of error is maintainable. We cannot assent to this result, as it is clear that section 721 was designed to prefer the family of the deceased rather than that of creditors. We do not believe full force and effect can be given to each section of the Code by any other construction than the one we have adopted.
Suggestion of error overruled.