Rowe v. Richards

151 N.W. 1001, 35 S.D. 201, 1915 S.D. LEXIS 33

• Court: South Dakota Supreme Court
• Decided: March 27, 1915
• Docket: File No. 3520
• Status: Published

Opinions

WHITING, J.

Plaintiff, the widow of one Wm. D. Rowe and the administratrix of his estate, brought this action, under the provisions of chapter 301, Laws 1909, and sought to recover damages which she and her child, as- widow and surviving child, suffered through the death of the husband and father, which death was alleged to have been occasioned by the negligent acts of defendants. Defendants alleged that the deceased, after receiving- the injury from which he afterwards died, settled for such injury with one of the defendants and executed- a full release of all damages occasioned1 by the alleged negligent acts. This allegation of the answer was demurred to-; the demurrer was sustained-; and- it is from the order sustaining same that this appeal was taken. The sole question presented to us is: Does such settlement with, and release 'by, the deceased bar the right to bring this action?

This cause has -been before us upon a former appeal; our opinion upon, the questions then raised being found in Rowe v. Richards, 32 S. D. 66, 142 N. W. 664. In such opinion will be found the following statement without the present italicizing:

“While not necessary to a decision in this case, in order to prevent confusion in the future relative to the cause of action growing out of injuries to the person and- the cause of action based upon death by negligence, it might be well to state that these two causes of action do- not conflict with each other, nor do they merge upon the death of the injured parties; neither is the prosecution or satisfaction of either a bar to the prosecution and recovery on the other.”

Appellants contend that, owing to the fact -that it was unnecessary for this court to make the above statement and adopt the rule therein announced in order to determine the questions then -before usi, what was so stated did not become the law of this case, and they urge u-pon us a further consideration of the question now presented. We welcome this- opportunity of giving to this question- that full consideration and- discussion which its importance demands, not, however, conceding that it -did not receive a very full and1 careful -consideration at the time this cause v/as before us upon the former appeal.

[1] Chapter 301, Laws 1909, is; almost- identical in language with statutes to be found in most of the states, which statutes are commonly designated as Lord 'Campbell Acts, in recognition of the fact that they are all copied more or less closely after the original English statute known as the Lord ■Campbell Act. Our statute, so far as material to our present discussion, is as follows:

“Section i. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued), have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case, the corporation which, or the person who, would have been liable, if death had not ensued, * * ■* shall be liable to an action for damages, notwithstanding the death of the person injured. * * *

“Sec. 3. Every such action shall be for the exclusive benefit of the wife or husband and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the personal representative of the deceased person; and in every action the jury may give such damages, not exceeding in any case ten thousand dollars ($10,000.00), as they may think proportionate to the pecuniary injury resulting from such death to the' persons respectively for whose benefit s.uch action shall be brought.”

Appellants quote from the notes found in 27 L. R. A. (N. S.) 176, in support of the claim that their contention is “supported * * * by all the cases that we have been able to find, where the precise question was raised under a statute similar to our chapter 301.” It must be acknowledged that a large number, and perhaps a majority, of the cases wherein this precise question was under consideration, have held in accord with appellants’ view, but to so acknowledge comes far short of conceding that the weight of authority supports such view — one holding, backed by- reasoning that is cogent, may be sufficient to outweigh any number of opinions wherein the argument, even though forcible, lacks that convincing power that -forces conviction. To our minds, in every case wherein the court, construing a statute similar to ours, has held that an injured party could release the wrongdoer from any liability for damages that might result' to .his next of kin from his death, the reasoning of the court, so far at least as it bore upon this particular question, lacks both in cogency and logic. It will 'be our endeavor herein, not to- take up each case bo holding and point out wherein the reasoning is open to -criticism, but, starting as- a premise from one proposition upon which the vast majority of the courts an-d law writers are agreed, to demonstrate, not only the correctness of s-u-ch premise, but, through a course of reasoning which it seems to us possesses at least the elements of cogency, to demonstrate the correctness of the statement -quoted from our former opinion.

Preliminary to such discussion, and to throw some light upon the intent of -the legislative bodies when passing these statutes, it may be of interest to inquire into the conditions that gave rise to such statutes. Why was it found necessary, either in this country or England, to enact any statute such as the one before us? It was because of the fa-ct that during the evolution of that great and, in most respects, gran-d body of established law evolved by the early jurists o-f these countries, such jurists were obsessed with the idea that a money value -could not be placed upon human life; 'and it followed that, inasmuch as there can be no legal injury where there is no recognizable damage therefor, the courts held, as stated by Lord EUeniborough in Baker v. Bolton, i Comp. 493: “In a civil court the death of a human being cannot be complained of as an injury.” While it would be the limit -of absurdity to say that any person could have a right of action for his own death, yet it was just as absurd to say that damages flowing from- 'an injury whi-ch a wife or child may suffer through the loss of the husband’s or father’s support was incapable of proof in a court of justice merely -because such loss of support resulted from the death of such husband- or father. As is well said in- Cooley on T-orts, 26:

“It is -remarkable that the common- law * * * should not have allowed the damages suffered by others from an unlawful killing to be recovered. The interest which husband and wife possess in each other’s life must usually have a pecuniary value which would be estimated for many purposes at a large sum in dealing with others. * * * Why should not the money value -of his life, when it is taken away by unlawful act or negligence, be a right of action in the hands of his representatives ?”

With the evolution of modern industry, resulting as it did in frequent deaths from negligence, the injustice of the rule of the common law became impressed upon the leaders of thought, and, from a realization of its injustice to a recognition of the utter un-soundness of the reasons urged in support thereof was but a short and natural step. The thinking mind could not help but recognize that the then- established rule presented—

“a glaring absurdity in allowing a husband and fathei, if injured, but not killed, a right of action for -the recovery of the damages thus sustained, and denying to his widow and children any compensation for the damages inflicted upon them, should the- injury be greater and result -in h-is death.” Maney v. C., B. & Q. R. R. Co., 49 Ill. App. 105.

In discussing this situation, the court, in Van Amburg v. Vicksburg, etc., R. R. Co., 37 La. Ann. 650, 55 Am. Rep. 517, well said:

“Legislation and jurisprudence have combined to perpetuate the extraordinary doctrine that the life of a free man cannot be made the subject of valuation, and under the domination of that dogmatic utterance, made earlier than the Roman Digest, reproduced -ther'ein, and echoed by the courts of all countries from then till now, the singular spectacle has -been witnessed of courts sanctioning -damages for short-lived pains, and refusing them for a live-long sorrow and the pecuniary losses consequent upon the death of one from whom was deprived support, comfort, and- even the necessary stays of life. Legislation has- at last come to the relief of future sufferers.”

In speaking of such legislation, the court, in Maney v. Railway, supra, said!:

“The enactment of the statute under consideration established the doctrine that the wife and next of kin and each of them had a property right and financial interest >in the life of the husband and relative. Prior to its enactment this property or financial interest was not recognized by the law, and no award of compensation for its- loss was permitted. Thus a new right of action was created in favor of persons who before-had neither right, cause of action, or remedy. If we are right thus far, the wife and children of Daniel- Maney, by the -operation and effect of the statute, had a financial property interest in the continuation of his -life. It did not flow from, nor was it based upon, the desire or consent of Daniel Maney. As husband and father, the law charged him, while living, with the performance of certain duties in their behalf and for their benefit. The duties arose out of marital and parental relations, were created by law, out of consideration of public policy, existed wholly without regard to the will of the husband, and were legally enforceable in his lifetime against him and his -property. It was a substantial, subsisting right in favor of his wife and children, available to- them during the continuation of -his life. Prior to this enactment it ceased at his death. By the enactment the right was kept alive, if his death-be occasioned-- by the wrongful act, neglect, or default of another, and a remedy provided for its enforcement against the -party so causing his death. ' Neither argument nor authority would seem to be necessary to sustain the view that the widow and next of kin cannot be deprived of the property right so created and vested in them at the will or pleasure or by the contract of another, though he be the party charged with the performance of duties out of which the right grew.”

Regardless of their views ■ upon- other questions arising in actions based upon statutes such as'the one before us, the courts almost uniformly hold that the statutes which give, on behalf of the next of kin, an action for an injury occasioned by the death of one killed, create a new cause of action separate and distinct from, and not a continuation of, the commonAciw cause of action given a pandy for his own physical injun'y. Judge Denio, in his opinion in Whitford v. Panama R. Co., 23 N. Y. 465, said of this statutory action:

“But the suggestion that the .present action is brought to enforce the right which the common law gave to’ the deceased, and that the provisions of our statute should be considered as affecting only the remedy, * * * is not, in miy opinion, sound; for-it is not a simple devolution of a cause of action which the de-ceased would have had which the statute effects, but it is an’ entirely new -cause of action wh-ioh is here sought to- be enforced. The system of the’ statute, as well as of the common law, is that the right of action for damages on- account of his- bodily injuries; which belonged to the deceased while.he lived was extinguished-by his " death. The statute' does not profess- to revive his cause: of'action'in-favor .of'the executor .or 'administrator. The comA pensation for the 'bodily injuries remains extinct, but a new grievance of a distinct nature, namely, the deprivation suffered by the wife and children, or other relatives, of their natural support and protection, arises upon his death, and is made by the statute the subject of a new cause of action- in favor of these surviving relatives, hut to- be prosecuted in point of form by the executor or administrator.”

In Pittsburgh, C., C. & St. R. Ry. Co. v. Hosea, Adm’r, 152 Ind. 412, 53 N. E. 419, the court said-:

“The statute expressly recognizes that, when death ensues from a wrongful act, the next of kin are tire persons damnified, and the action is given to compensate them for the damages sustained thereby. In no sense can the action given by statute be said to be the same as that resting in the intestate before his death, further than that the source is the same. In the former the right comes by -the common law; in the latter -by statute. In the former the elements of -damage that were recoverable were for bodily pain and suffering, loss of time and health, and expenses incurred1 in providing medicial attendance and nursing; in the latter the damages are -confined to pecuniary loss. To the widow is allowed, for example, the amount of damages sustained by -her in the loss of su-ch support as she was receiving, and was likely to receive, from her -husband, to be measured by his present and -prospective earnings, less the sum required for his -personal support and other family obligations. To his child is- allowed, not only for the loss of his support during infancy, but also for the loss of parental care and! training.”

In Mahoning Valley R. Co. v. Van Alstine, 77 Ohio St. 395, 83 N. E. 601, 14 L. R. A. 893, the court said:

“It is manifest -from the foregoing that the -revived action and the later action are not the same. They rest primarily upon the same alleged neglig-ence of the defendant and the same absence of contributory negligence of the injured person; but in the revived action the damages are for personal injuries to the injured person f-or which- an -action would lie if death had not ensued, and such damages to inure when reco-yered to the benefit of the estate, while in the later action the suit is prosecuted in the interest of.other parties, and the measure of damages is the pecuniary loss they have sustained by the death. In the later case death gives the right of action under the statute, while, had the pending action not been susceptible of being revived, the death would have terminated the right to recover in the interest of the estate.”

In Brown v. C. & N. W. Ry. Co., 102 Wis. 137, 77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579, the court said:

“But, * * * as before observed, the language of the two provisions is plain. They refer to entirely distinct losses recoverable in different rights; the one in the right of the deceased for the loss occasioned to him; the other in the right of the surviving relatives for the loss to them. Both are dependent on the injury, but only one dependent on the death with surviving relatives to take under the statute.”

To the same effect are the opinions in the following cases: Putman v. Southern Pac. Co., 21 Or. 230, 27 Pac. 1033; Missouri Pac. Ry. Co. v. Bennett’s Estate, 5 Kan. App. 231, 47 Pac. 183; Maney v. C., B. & Q. R. R. Co., supra; Hurst v. Detroit City Ry., 84 Mich. 539, 48 N. W. 44; Vicksburg & M. R. Co. v. Phillips, Adm'x, 64 Miss. 693, 2 South. 537; Bowes v. City of Boston, 155 Mass. 344, 29 N. E. 633, 15 L. R. A. 365. See, also, 1 C. J .198, and the numerous cases cited in notes 98 and 99.

But we are reminded that our statute and that of various other states are almost verbatim copies of the original Lord Campbell’s Act; and we are especially reminded that such statutes have retained the phrase “notwithstanding the death of the party injured,” and that they omit to specifically declare that the action which can be brought thereunder is one “for the death” of such injured party. It seems to be contended that, where the first only of these phrases is used, there is shown an intent to create a survival statute under which the cause of action which the common law gave to a party suffering- an injury through the wrong or negligence of another would survive, and a right of action therefor be given for the benefit of certain survivors; but that, where the second or some equivalent phrase is used in the statute, there is shown an intent to create an entirely new cause of action on behalf of such survivors. No such distinction, based upon the use or the failure to use the first of such phrases, has ever been recognized by any court so 'far as we have been able to learn, and certainly none is justified.

We may well stop to inquire why it is that any one should fail to recognize that statutes like ours create a new cause of action. We may also well ask why it is that the various courts of our land, while not making the mistake of holding that such a statute does not create a new cause of action, yet differ so radically in their views relative to matters merely incident to the causes of action. We are constrained to believe that the explanation is to be found in the failure to keep carefully in mind the various elements going to make up the particular cause of action contemplated by the statute, and therefore a failure to recognize that, in the cause of action contemplated by the statute, there are one or more elements which, in their very nature, distinguish such cause of action and its incidents from that cause of action which the common law gave to the party who suffered the physical injury. While the phrase “cause of action” is often used as synonymous with “right of action,” and is even used when it is the “subject-matter” in litigation that is referred to, yet we think its true meaning is clear. It has been frequently stated that a “cause of action” consists of the right belonging to one' ■person and some wrongful act or omission by another by which ■that right has been violated. Veeder v. Baker, 83 N. Y. 156; Goodrich v. Alfred, 72 Conn. 257, 43 Atl. 1041; Kennerty v. Etiwam Phosphate Co., 21 S. C. 226, 53 Am. Rep. 669; Mercantile Trust & Deposit Co. v. Roanoke & S. R. Co. (C. C.) 109 Fed. 3; Atchison, T. & S. F. R. Co. v. Rice, 36 Kan. 593, 14 Pac. 229; McKee v. Dodd, 152 Cal. 637, 93 Pac. 854, 14 L. R. A. (N. S.) 780, 125 Am. St. Rep. 82. Pomeroy, in his Code Remedies (4th Ed.) § 347, and in his Remedies and Remedial Rights (2d Ed.) § 453, with his usual clearness and exactness, says (the italicisizing being ours) :

“Every remedial right arises out of an antecedent primary right and corresponding duty and a delict or breach of such primary right and duty by the person on whom the duty rests. Every judicial action must therefore involve the following elements : A primary right possessed by the plaintiff, and a corresponding primary duty devolving- upon the defendant; a delict or wrong done by the defendant which consisted in a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from this delict; and, finally, the remedy or relief itself. Every action, however complicated, or however simple^ must contain these essential elements. Of these elements the primary right and duty and the delict or wrong combined constitute the cause of action in the legal sense of the term, and as it is used in the Codes of the several states. They are the legal cause or foundation whence the right of action springs; this right of action being identical with the ‘remedial right’ as designated in my analysis. In accordance with the principles of pleading adopted in the new American system the existence of a legal right in an abstract form is never alleged by the plaintiff; but, instead thereof, the facts from1 which that right arises are set forth, and the right itself is inferred therefrom. The cause of action, as it appears in the complaint when properly pleaded, will therefore always be the tacts from which the plaintiff’s primary right and the defendant’s corresponding primary duty have arisen, together with the facts which constitute the defendant’s delict or act of wrong.”

Judge Cooley, in the case of Post v. Cambau, 42 Mich. 96, 3 N. W. 275, said:

“The elements of a cause of action are: First, a breach of duty owing by one person to another; and, second, a damage resulting to another from the breach. Damage, where no. duty is violated, is damnum' absque injuria. A neglect of duty, where no loss occurs, is equally incapable of giving a right of action.”

[2] There can be no breach of.duty by one person except there be a corresponding right belonging to some other peson, so that there is in reality no difference between the several definition's. Judge Cooley calls attention to damage as a necessary element in a “cause of action,” but, as the violation of a legal right produces a legal injury from which damage is presumed too flow, the difference between such definitions is more apparent than real. One thing that should never be lost sight of is that:

"The cause of the injury upon which the right of action is founded is not the ‘cause of action’ itself, but is only one element in the cause of action.” Parris v. Atlanta, K. & N. Ry. Co., 128 Ga. 434, 57 S. E. 692.

This fact seems to have been lost sight of by those courts which have held' that there could be but one recovery for one wrong — “one wrongful act.” Just as it is a law of physics that, when one of the elements which go to make up' a compound is changed for another, a new compound is created, so it is true that, whenever one of the elements going to make up a given cause of action is replaced' by a new element, the original cause of action ceases to exist, and another, a separate and distinct cause of action comes into existence. Keeping this fundamental truth in view, let us separate into their elements the two “causes of action”- — one the cause of action recognized at common law; the other the one given by chapter 301, Laws 1909, supra.

Every person has an inherent right to personal, physical safety; upon every other person rests the duty to respect such inherent right; a person may be guilty of any number of negligent or unlawful acts, either of -commission or omission, yet, if by the same he does not violate some one’s right to personal safety, he has not violated his duty toward that other person, and his acts do not enter into, or become an element of, any “cause of action”; but whenever, by -any such act, he does violate that duty which he owes to some other person, and the right of such other is infringed1, he -brings into existence the third element which, uniting with th-e other elements — th-e right and the duty— creates the “cause of action” one recognized by the common law.

What of the elements going to make up a “cause of action” under said chapter 301 ? There cannot be found in section x thereof a single word which indicates or points out what “damages” the defendant shall be liable for in the “action for damages” therein mentioned — whether it shall be for some damages known to the common law or for some -damages for the first time recognized by such statute itself; section 1 provides certain things in relation to the “cause of the injury” that must be -established as a condition precedent to any recovery under such statute, but it is to section 3 of our statute and to section 2 of the original Lord Campbell Act that one must look to 'determine whether the statute merely gives a right of action for a cause of action known tc •the common law, and is therefore a survival statute, or whether it ■creates a new cause of action 'separate and -distinct from any 'known to the common law, thus rendering such statute in no ■sense a survival statute. As stated by Judge Cooley, “damage” is one of the necessary elements in a cause of action; from the “damage” which is recoverable one can always determine whose “primary -right” it is the -breach of which gives rise to- a “cause of action.” Thus in section 3 of our statute we find that the damages, which section 1 says the wrongdoer shall -be liable to an action for, are damages “proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought.” What plainer language could be used to show that it is the damages suffered -by the survivors -through the violation of their “primary right” that are to be recovered? In other words, that the.“cause of action” for which recovery is to be had is one based upon the breach of 'the duty the wrongdoer owed such survivors, a cause of action distinct and separate from that which the injured party could have maintained, having but one -thing in common with the other cause of action— the cause of the injury, the wrongful act, being the same in each -case, a cause of action as clearly “for the death” of the party who received the physical injury as though such phrase was- -contained- in our statute; the “primary right” violated is entirely distinct and different from the primary right of the party receiving the physical injury -whose primary right was also violated by the same wrongful act; The damages resulting from the violation of the survivors’ primary right are not -even composed of the same elements as those found in the cause of action resulting from the violation of the primary right of the deceased — in the -one case the damage recoveraible is that suffered or yet to be suffered by the party receiving the physical injury, and is therefore restricted to a time which -must terminate at his death; in the other case the damage recoverable is limited- to that suffered after, but owing to, the death of the -one receiving- the physical injury. What primary right of the survivor has been violated? Take the case of -the surviving wife. One of the-recognized legal rights of a wife — a right flowing from, and incident to, the marital relation — -is the right to support and maintenance by -her husband; to such support and- maintenance she is entitled until death shall sever such marital relation; the corresponding duty of the husband to support and maintain his wife- is dependent upon the continuance of his life, hence it is the further right of -the wife that such duty shall not be terminated by the wrongful act of another; it follows that there is a legal duty resting upon every person not to deprive such wife of the support and maintenance of her husband' by any wrongful act — by the abduction of such husband, by the alienation of his affections resulting in estrangement and separation from his wife, or by an act that- deprives him' of his life. Whenever this right of the wife to the support of her husband is violated through the death of the husband occasioned by some wrongful act of a third party, there exists the several necessary elements — the right, the duty, the infringement of one by the wrongful violation of the other — which, uniting, create a cause of action; one however, unknown to the law, except where by statute the law recognized that there could be a legal damage, one measurable in money, resulting from the death of a human being. - It therefore follows that, under the definitions of “cause of action” as given by Cooley and Pomeroy, and universally accepted by the courts of our land, this “cause of action” recognized and given by section 3 of our statute is a new cause of action. The cause of the two injuries — that to the husband and that to the wife — is, as herein-before noted, the same, the one wrongful or negligent act, but the right violated in the one case is entirely different from the right violated in the other case.

There are, however, states having statutes containing section i of the I/ord Campbell Act, some having, and others not having, sections similar to our section 3, which have provisions therein giving a right to the personal representatives of the party who received the physical injury to recover the very damages which the deceased might have recovered — in other words, provisions giving a right of action where. one was unknown to the common law for a cause of action which was known to the common law; whenever such provisions are found, the statutes are, to the extent of the cause of action covered by such provisions, survival statutes, though, if they also contain provisions such as are found in our section 3, they also create a new cause of action in addition to giving a new right of action for an old cause of action.

We must confess our inability to grasp' the logic of any course of so-called reasoning through which the conclusion is drawn that the husband simply because he may live to suffer from a physical injury and thus become vested with a cause of action for the violation of his own personal right, has an implied power to release a cause of action — one which has not then accrued; one which may never accrue; one which from its very nature cannot accrue until his death,; and one which, if it ever does accrue, will accrue in favor of his wife and be based solely upon a violation of a right vested solely in the wife. The unsoundness of such reasoning rests not only upon the fact that this cause of action so held to be released is not in existence during the life of the husband, but it rests even more upon the fact that the legal right the existence of which is the fundamental element in every cause of action upon which the other elements all rest is not a right that, in the remotest manner, directly or indirectly, belongs to' the husband; it is, in fact, a right which the wife, by virtue of the marital relation, holds against her husband — a right giving rise to a duty upon his part; it is that marital right in lieu of which a court grants alimony when terminating that bond upon which such right and its corresponding duty have theretofore rested. Maney v. Railway, supra. We apprehend that no •one would deny but that it would 'be the limit of absurdity for one to contend that a wife who had been forcibly abducted could, when settling with the wrongdoer for the wrong done her, the violation of her right of personal liberty, also bind her husband by settling for the wrong done him, the violation of his right to her services, and thus ibar his right of action therefor. Yet such a case would, in its underlying principles, be on all fours with the case before us; we would have the inherent right to personal safety vested in the wife which with its violation gives to her a cause of action; we would have the marital right of the husband, the corresponding marital duty of the wife, the violation of the •husband's marital right resulting in a cause of action in the husband; and the two causes of action would, just as-in the case of injury to, and resulting death of, a husband, result from one wrongful act.

We think that what we have said above shows the absurdity of the contention that to allow a recovery for the injury suffered by the deceased and for that suffered by the next of kin is to allow the recovery of double damages for one wrong — it being axiomatic that there can be no wrong without a corresponding right, and that where -there are two rights violated, the wrongs are separate and distinct. Of course, it is a recovery of -two items of damages resulting from one wrongful act, but it is not the recovery of two items of damage for one injury. A., in negligent disregard -of the rights 'of others, fires a bullet from his rifle, the shot neither disturbs nor physically injures any person or property, hence there is no cause -of action; he fires another bullet, it injures B., immediately there arises a cause of action; the shot also kills B.’s cow, one element of the cause of action is changed and another 'cause of action arises; the shot kills B.’s child, again a new element and a new -cause o-f action. Nio one would contend that the recovery of damages on all the causes of action was- the recovery of triple damages for one wrong', though it is the recovery of three items of damage flowing from three separate injuries occasioned by one wrongful act. The bullet shot Iby.A. also -kills a cow -belonging to B.’s wife — ' again there is; a change in- elements, and a new cause of action arises; the wrongdoer is not mulcted in even double dam-ages when he is compelled to settle for the wife’s cause of action after having settled the husband’s three causes o«f action; -how, then, can it be «claimed, with, any semblance of reason, that A. is being mulcted in double -damages if, after «he «has settled for all the above causes of action, it turns out that the injury t-o B. proves fatal, and A. is compelled to respond to B.’s- wife in settlement of the new .-cause of action that comes into existence upon B.’s death, a cause of action having in it an element not to be found in either of the other causes of action, but chancing to have one element in common with the others, the wrongful act? In what respect is her loss less real, or 'her rights entitled to les«s consideration, than they would have been i-f the shot fired by A. had resulted in the instantaneous death of B.?

But we find at least two courts (Littlewood v. Mayor, 89 N. Y. 24, 42 Am. Rep. 271; Southern Bell Telephone Co. v. Cassin, 111 Ga. 575, 36 S. E. 881, 50 L. R. A. 694) questioning the wisdom of -a policy that would allow a recovery for an injury resulting' from the death of, after «settlement with, the husband. These courts, and especially the Georgia court, lay great stress u-pon the wrongs, even to the injured party and his next of kin, that must flow from holding as we held in our former opinion. .If it were clear that great wrong and injustice would flow from so construing this law, of which we are far from convinced, such fact could only be considered when seeking to arrive at the intent of the lawmakers, such intent being doubtful on account of lack of clearness in the language used. We think the following from the opinion in Brown v. C. & N. W. Ry. Co., supra, is very pertinent to the reasoning of such courts, and we would note that it was used in speaking of a Lord Campbell Act:

“The language of the statutes, when viewed in the light of the evident legislative purpose, is too plain to justify courts in interpolating into them language not there by necessary implication from the context, in order to make them accord with the ideas of judges as to the best legislative policy. The judicial function, we need not say here, does not extend so far. It calls for a firm adherence to the law as written, if valid, without regard to individual opinions as to its being good or bad. In this we do not intend to suggest that the law in question, as construed here, is, a bad law. On the contrary, there appears- to be much wisdom in providing that a person who wrongfully causes a personal injury to another shall not profit by that other’s death, so far as actual damages go, either to the deceased person or to the wife, husband, or lineal descendants or ancestors of such person.”

If, however, the question of public policy were at all pertinent to this discussion, we would suggest that it is clearly against, rather than in accord with, sound public policy to allow a person, especially when his own selfish interests may be affected thereby, .to settle either an accrued or anticipated cause of action to which he is not and cannot, from the very nature of such cause of action, -be a party.

All courts and law writers, when announcing the rule contended for by appellant, refer, as an authority, to the case of Read v. Great Eastern Railway Company, 3 Q. B. English Law Reports, 555, a case wherein the real “Lord Campbell Act” was under consideration. A reading of the opinions therein reveals that two- grounds for the decision of the court are suggested: That the law-makers did not intend “to make the wrongdoer pay damages twice for the same wrongful act”; and that, “taking the plea (of settlement) to be time, the party injured could not ‘maintain an action in respect thereof/ because he had already leceived satisfaction.” The unsoundness of the first ground we believe we have shown; the second appears to be based upon the peculiar wording of the statute, and its correctness depends upon whether the statute, taken as a whole, will permit such an effect to be given the words “have entitled the party injured to maintain an action.” The second ground, which is indorsed' by several American courts, is thus stated in 6 Thomp. Neg. § 7028:

“The right of action in "-the personal representatives, it has been held, depends not only upon the ■ character of the act from which death ensued, but also upon the condition of the decedent’s claim at the time of his death. If the claim was in such shape that he could not have enforced it had death not ensued, the statute gives the executors no right of action, and creates 110 liability whatever on the part of the person inflicting the injury.”

Speaking of this rule — -that a release by the injured party bars a right of action on behalf of the next of kin — the learned author of Elliott on Railroads, at section 1376, says:

“This is certainly true where the statute is a mere survival statute, and it is also generally held to be the rule under most statutes of the other class, but in the case of statutes of the latter class, where they give a new right of action not dependent upon the right of the deceased to maintain an action if he had lived, it is somewhat difficult to support the rule by logical reasoning, and some judges deny it in such cases.”

It is in regard to this particular ground for holding a release or settlement a -bar to an action on behalf of the next of kin that the learned author of the notes to the American State Reports said in 70 Am. St. Rep. 684 (the italicizing being ours):

“It is somewhat difficult to combat the logic which leads to such a conclusion. The rule, however, that no action for wrongful death is maintainable, except where deceased himself could have sued had he survived, applies to, as indeed it grew out of, matters pertaining to- the nature and cause of the injury which resulted in death. Was the negligence or wrongful get of defendant the proximate cause of the injury? If not, deceased could not have recovered against him, nor can his successors under the statute. Did deceased’s contributory negligence cause the injury? If so, any action for such injury is similarly barred. If the relation of master and servant subsisted between deceased and defendant, was the injury resultant from the act or neglect oí ,a fellow servant, or was it, for any reason arising out of the rules of master and servant, such an injury as gave rise to no liability on the part of the defendant? If this is answered affirmatively, * * * no cause of action ever arose which was susceptible of release or compromise. Where, however, -a cause of action does arise, and the injured person has a period of suffering and expense, there seems no reason that he should not be able, while living, to make any adjustment of his claim with defendant which would bar a recovery by his beneficiaries after his death upon the same claim. But the action given under other than survival statutes is entirely distinct 'from the action which deceased had at the moment prior to his death. It is an action for damages arising from the mere fact of death, not damages to the death, but damages to his successors under the statute. Therefore we cannot comprehend the reasoning which enables an injured person to release a cause of action which has not accrued, and cannot accrue until his death, and which then accrues to third persons. It would be necessary to support such a conclusion that we admit -that a person has a right of action for his own death. A greater degree of absurdity would not be attained in the enactment of a statute making suicide punishable as murder in the first degree.”

In line with the above, we are firmly of the' opinion that the first half of section i of our act has sole reference to the question of -whether or not the party receiving the physical injury eper had a cause of action therefor, and has no reference to the condition of such party’s claim at the time of his death. Did the English court in the Read case construe the Lord Campbell Act as creating a new cause of action, or did it consider such statute to be in the nature of a survival statute? If the first, their conclusion that a release by the injured party bars any claim by next of kin is inconsistent therewith; if the second, their conclusion is consistent therewith, but such conclusion should have no weight in any court that holds that the act creates' a new cause of action. Fourteen years after the decision in the Read case the case of Griffiths v. Dudley was decided, the opinion being found in 9 Q. B. Div. Eng. L. Rep. 357. An examination of that case shows that, in order to reach the decision therein, it became necessary to carefully consider the Read case. Two' judges wrote opinions, and in speaking of the Read ease said (using the language of Judge Field, the language of Judge Cove ¡being almost identical therewith) :

“Read v. Great Eastern Ry. Co. is a clear decision that’ Lord Campbell’s Act did not give .any new cause of action, but only substituted the right of the representative to sue in the place of the right which the deceased himself would have had if he had .survived.”

'Was this statement regarding the holding in the Read case justified by the language used by the two judges who wrote the opinions in that case? It certainly was. Judge Philbrick, in writing the main opinion, said, after the words hereinbefore quoted:

“Then comes section 2, which regulates the 'amount of damages, and provides for its apportionment in a manner different to that which would have been awarded to a man in his lifetime. This section may provide a new principle as to the assessment of damages, but it does not give any new right of action.”

And Judge Lush said:

“It is true that section 2 provides a different mode of assessing the damages, but that does not give a fresh cause of action.”

Thus it is seen that the English court w.as consistent in its views — it held that the statute did not create a new cause of action, so holding, it logically held that the settlement of the cause of action by the injured party .barred any action by or on behalf of his next of kin. It is also' worthy of note that the syllabusi prepared and printed with the opinion in the Read case, and published the same year in which the opinion was written, and which we should certainly expect would point out the chief points in the opinion, -whether prepared by the judges or not, gives the following as the holding of the court upon the demurrer to the plea of settlement by deceased:

“Field, that the cause of action was the defendant’s negligence, which had been satisfied in the deceased’s lifetime, and that the death of D. Read did not create a fresh cause of action.”

In the light of the above, it is certainly strange that courts holding that a statute such as the one before us does create a new cause of action should cite the Read case as an authority in support of a proposition that is inconsistent with such holding.

Perhaps the most comprehensive discussion of the question before us found in any decision is that in the majority and minority opinions in Southern Bell Telephone Co. v. Cassin, supra— the majority opinion holding a settlement such as in the present case to be a bar, the minority holding that it is not a bar. It is worthy of note , that the statute before that court provided that, in the action based upon the death of a husband or father, the jury’s verdict is for the “full value of the life of the deceased, without 'deduction for his necessary and personal expenses”; a provision radically different from that in our statute. Repeatedly, throughout the majority opinion, are to be found references to this provision, and we feel that a reading of such opinion cannot but impress one that this peculiar provision had much to do in shaping the views of the majority upon the question of the public policy of allowing a recovery on behalf of next of kin after a settlement with the injured party; and it is very clear, from the reading of such majority opinion, that the .majority’s views on the question of public policy largely controlled its decision. We would note a few of w'hat we deem weak positions taken in the majority opinion. The court says:

“If a release wipes out the wrong done by the defendant, and makes it as though no injury had been suffered, then upon the death of the injured party there would be no cause of action, just as though there had been no injury, and it would not be a question as to the right to maintain two concurrent suits, but as to the right to maintain any suit at all.”

As indicated in the above quotation, the court took the view that the release by the injured party entirely removed the wrong done to the next of kin; and in another part of the opinion, when discussing the opinion of the same court in Ga. R. R. v. Fitzgerald, 108 Ga. 507, 34 S. E. 316, 49 L. R. A. 175, which was a case which did not in any manner involve the question now before us, but did involve the question of the right of plaintiff to introduce in evidence the admission- of deceased in relation to the cause of -the injury received by him, it noted that in the Fitzgerald case it was held that the surviving wife “is to be considered in privity with her husband, in so far as her right to complain of the homicide is concerned. The court then held that, owing to this privity, the wife was bound, not only by any defense which the defendant might have interposed to the original claim of injury — that is, by anything in the nature of a defense which was precedent in time to or accompanying the claimed wrongful act, and which was the real point decided in the Fitzgerald case; but it also held that, owing to such “privity,” she was hound by what her husband did after the injury, and in this connection said:

“To hold otherwise would be to say that the wife could be barred by what her husband said, but not by what he did; that she might, be concluded by words, but not by money; that the evidence of her husband given in the suit for his personal injuries, might be used against her in a suit for his death, but that the more solemn judgment against him would not conclude her.”

A mere reading of the above c]uotation shows the weakness of the position taken by the court wherein the court fails to distinguish between that which went to prove whether or not there ever existed a cause of action in favor of the husband and that which merely went to prove whether a -cause of action once existing had been released. The wife’s cause of action certainly rested upon proof that the husband once had a cause of action— that question was vital to her claim. An examination of the opinion in the Fitzgerald, case discloses that therein the wife was held bound- by anything done by her -husband owing to which a cause of action nez'er arose; while in the Cassin case the court extended the “privity” entirely beyond the rule of the Fitzgerald case, by holding the wife bound by what her husband did after his cause of action had accrued in settling, not her, but his, cause of action. In the minority opinion, after exhaustively reviewing all the earlier decisions- construing the statutes of such state, and among them the Fitzgerald case, it is said (the italicizing being ours) :

“In other words, the right of a widow to recover is not because the death of her husband has been brought about by the act of some person, but his death must be the result of some act of commission or omission on the part of the defendant which the law would declare to be negligent, and under such circumstances that, had death not resulted, he would have been entitled to demand compensation. It is therefore clearly right that the widow should be deprived of her right to bring a suit if the deceased could have avoided' the consequences of the defendant’s negligence by the exercise of ordinary care, as well as in the case where the deceased had entered into a contract which had the effect of making the act of the defendant lawful as to him, and also* in all of those cases- where the facts and circumstances surrounding the killing, as well as those leading up to and preceding it, were such a>s to s'ho-w either that the defendant had been guilty of no wrongful act, or that the deceased was the victim of his own folly in matter of contract, or of his carelessness in matter of conduct. All of the cases which we have cited above, being all we have been able to find in our reports dealing with the question under consideration, relate to some act done by the deceased prior to,,or concurrent with, the injury which he received. When a person is injured by the wrongful act of another, a foundation is at once laid for a cause of action in favor of those entitled under the law to' demand compensation for his ■death; and the moment that his death results- from such wrongful act the cause of action is full and complete. Nothing the person injured can say or do between the date of the iw'ongful act and his death can defeat the cause of action for the homicide.”

Again the majority say:

“To begin with, the English courts have held- that Eord Campbell’s Act created a new cause of action, and yet in the Read case, the first decision as to the effect of a release, it was pointedly held, that a plea of accord and satisfaction with the deceased in his lifetime was a good bar to an action by his legal representatives.’ ”

'While we think the court in the Read case should have held that the statute -created a new cause of action, yet we have seen that it was held therein, and so understood by the court that decided the Griffith case, that the Lord Campbell Act did not create a new cause of action. If the court in the Read case had held that the statute -created a new cause of action, it is quite probable 'that they would have reached, a different conclusion, one consistent with the idea that a separate and distinct cause of action had been created. We frankly admit o-ur inability to comprehend the force of reasoning in the following found in the majority opinion in the Cassin case:

“If his negligence in the adt is imputed to her, should not also his conduct after the injury 'be imputed to her? In spite of all the recent statutes, The husband is still the head of the family,’ his life is his own, his -body is his own, and whatever right in that life the law gives to his wife must ibe subject to the superior right of the husband.”

We apprehend no rule is sound that will not work both ways. The above words would read quite different if you substitute, as the party receiving the physical injury and settling therefor, the wife or the child, and, as the party suing for the injury caused ■by the death, of such wife or child, the husband or father; we are inclined to the view ithat the learned judges would not have overlooked the weakness'of this statement. The majority sums up its views in this remarkable statement:

“The substantial grounds on which the courts must hold that the husband’s settlement bars the w-ife are based upon the fact that the wife’s right in the life of her husband is subordinate to what he himself has done with his life; that, as his. negligence is imputable to her, so his ratification and condonation of the wrong done Mm estops h,er; that his acceptance of payment ratifies the act, and admits that he has been made whole of his injury; that thereafter the defendant can say lie has not harmed the husband, but that payment, like pardon, relates back to the original act, and makes it as though it had not been.”

Let us substitute the word “wife” for “husband” and “husband” for-“wife” in the above statement and then apply it either to the case of injury and death or to the supposed case, herein-before mentioned, of abduction of a wife; if the statement is good law it is properly applicable thereto. Suppose in the abduction case die wife has settled for the wrong done her, and the husband is suing the wrongdoer for the violation of his right to his wife’s services; imagine a court saying:

“The ground upon which we hold the husband barred is based on the fact that the -husband’s right in the life of his wife is subordinate to what she herself has done -with her life; as her conduct would be imputable to him, her ratification and condonátion of the wrong done her estops him; her acceptance of payment ratifies the act, and admits that she has been made whole of her injury; that thereafter the wrongdoer can say he has not harmed the wife, but that payment, like pardon, relates back to the original act, and makes it as though it had not been.”

This certainly would be remarkable law. A reading of the majority opinion in the 'Cassin case can but convince one of the correctness of Elliott’s statement, 'hereinbefore quoted, that “it is somewhat difficult to support the rule by logical reasoning;” and such a reading, we think, is sufficient to convince any person that such opinion is really -based upon the majority’s views as to what was and was not sound public policy.

In Hecht v. Ohio, etc., R. Co., 132 Ind. 507, 32 N. E. 302, the court said:

“It was certainly not the intention of the Legislature that, when the person guilty of the wrong has been once subjected to a suit by the injured party in his lifetime, and compelled to pay all of the damages resulting from the injuries sustained by the wrongful act, he s'hotdd again be liable to an action in favor of the personal representatives of the injured party after his death, and be again compelled to respond in damages for the same -act.”

Sufficient comment on the above is to call attention to the fact that the “injured party” therein mentioned could not in his action, recover for those damages sustained by the next of kin through the death of the injured party, and therefore the wrongdoer could be “compelled (by such action) to pay all the damages resulting from the injuries sustained by the wrongful act.” The bare statement of the proposition — 'that the injured party could sue and recover for 'damages which might result to third parties through the death of plaintiff — demonstrates the weakness, not to say absurdity, thereof. In Strode v. St. Louis Transit Co., 197 Mo. 616, 95 S. W. 851, 7 Ann. Cas. 1084, the court said: -

“The general consensus of opinion seems to he that the gist and foundation of the right in all Cases is the wrongful act, and that for such wrongful act but one recovery should be had, and that, if the deceased had received satisfaction in his lifetime, .either by settlement .and adjustment or by adjudication in the counts, no further right of action existed.”

The unsoundness of the foregoing is apparent. Why not more than one recovery for such “wrongful act”? Why this refusal to follow the ordinary rule that there may be recoveries for every legal injury occasioned by a wrongful act? In Louisville Ry. Co. v. Taylor, Adm'r, 135 Ky. 738, 123 S. W. 281, 27 L. R. A. (N. S.) 176, the court said:

“The rule that a personal representative cannot sue upon both causes of action is based upon the ground that the defendant committed a single wrong, the negligence or wrongful act which caused the injury, and that, while the law gives two remedies for the wrong, it was not contemplated that two recoveries ■should be had for one wrong.”

There are not “two remedies for one wrong,” there is one remedy for each of two wrongs — one a wrong to the party who afterward dies, the other a wrong to those who survive. In Holton v. Daly, 106 Ill. 131, the court, in speaking- of the right of personal representatives to bring two actions — one based upon a statute providing for the survival of the common-law action, the other based on a Lord Campbell Act — said:

“It is not to be presumed that it was intended there should be two causes of action, in distinct and different rights, by the same party plaintiff, for the same wrongful act, neglect, 01-default. * * * It is true the measure of recovery in the different cases is not the same, but the cause of action is, viz., the wrongful act, neglect, or default.”

Here, again, we see a court failing to distinguish between a “cause of action” and one single element of such cause of action.

The above quotations are fairly representative of the statements found in all those opinions wherein conclusions are reached which are inconsistent with our views. How much more consonant with reason is the following from the opinion in Mahoning Valley Ry. Co. v. Van Alstine, supra:

“It is insisted', further, that the theory of two causes of action will necessarily result in the assessment of double damages, at least in part, and this is emphasized by the learned judge who delivered the opinion in Holton v. Daly, 106 Ill. 131. We are not able to perceive that this, in practice, would prove a very serious situation. At least the eminent jurist who. presided in the common pleas at the trial of the revived action seemed to have no difficulty in giving to: the jury a rule as to damages which, as it seems t’o u-s, would not embarrass the question of a proper rule of damages to be given the jury upon the trial of the second action. The objection is a plausible one. We are not impressed that it is sound. ■ At least it cannot avail if the right to a second action where death results: from the injuries is given by the statute.”

In Burk v. Arcata & Mad River R. R. Co., 125 Cal. 364, 57 Pac. 1065, 73 Am. St. Rep. 52, it was; said:

“Under our statute, the injured person might survive long enough to sue and recover damages or to settle with the wrongdoer, and then by his death a new cause of action would accrue to his heirs.”

In Brown v. C. & N. W. Ry. Co., supra, it was said:

“The action for a death loss to a surviving relative is not a right by survivorship to the claim which existed in favor of the injured pension in his lifetime.”

The following words of Justice Brewer found in Hulbert v. Topeka (C. C.) 34 Fed. 510, are worthy of careful consideration:

“Section 422 [the homicide section (Comp. Laws 1879)] gives a new right of action — one not existing before; an action which is no.t founded on survivorship: an action which takes no account of the wrong done to- the decedent, but one which gives to the widow or next of kin damages which have been sustained by reason of the wrongful taking away of the life of the decedent. It makes no difference whether the injured party was killed instantly, or lived months; whether he suffered lingering pain or not; whether or not he was put to any expense for medical attendance and nursing. None of these m'atters are to be considered in an action under section 422; and the single question is: How much has the wrongful taking- away of his life injured his widow or next of kin? It is an action to recover damages for the death, and in no sense a survival of an action which * * * the decedent himself had in his lifetime.”

In Littlewood v. Mayor, supra, the court said:

“There can be no doubt that the Legislature had power to create the double liability contended for, nor would it necessarily involve any inconsistency. The damages of the party injured are different and distinguishable from those which his next of kin sustained by. his death, and no double recovery of the same damages would result.”

In Pittsburg, C., C. & St. L. Ry. Co. v. Hosea, Adm’r, supra, it is said (the italics being ours) :

“'Whatever may be said with respect to the power of the intestate to contract away his right of action against the appellant, he surely had no power' to bargain away his family’s right of action given by statute against the one wrongfully causing his death.”

We close in the words of the court in Maney v. Railway Co., supra:

“Neither argument nor authority would seem to be necessary to sustain the view that the widow and next of kin cannot be deprived of the property right so created and vested in them at the will or pleasure or by the contract of another, though he be the party charged with the performance of duties out of which the right grew.”

The order appealed from is affirmed.