Sweetland v. Chicago & Grand Trunk Railway Co.

Grant, C. J. We do not think that there was any tan — 331 — gible evidence from which the jury had the right to infer that the deceased endured pain and suffering. The two trains collided with terrific force, and many were instantly killed. The witness Allen testified that he reached the telescoped car within three or four minutes after the collision; that he heard wails and groans within; that the car took fire within a minute or two afterwards; that within 10 or 15 minutes they were driven away by the heat of the flames. Plaintiff was a physician, and brother of the deceased. He testified that both the upper and lower extremities of the body were burned completely off, that the upper part of the scalp was entirely denuded, and that the left thigh bone was either burned off diagonally or had been fractured. Prom his examination of the body, he gave his opinion that death was not instantaneous. It is mere conjecture how long she lived, and there is nothing to indicate that she was conscious at any time after the accident, and before death, if death was not instantaneous. If she was not conscious, how can it be said that she suffered pain ? Whether death was instantaneous, or whether, if not instantaneous, she was conscious after the injury, is purely conjectural. Where one was found, about 10 minutes after the accident, with his body crushed, and his bowels disrupted, and he was still breathing, but unconscious, and died almost immediately, without recovering consciousness, held that no damages could be recovered for pain and suffering. Mulchahey v. Wheel Co., 145 Mass. 281 (1 Am. St. Rep. 458). The court said: “But, as the plaintiff can only recover such damages as she can show were sustained by her intestate, if he became instantly insensible, and so remained until his death, nothing can be recovered for any physical or mental suffering sustained by him.” Where a boat struck the bank of a river, and'sank in about 10 minutes, and a passenger was drowned, held that there could be no recovery for mental and physical pains and shock before death; that they were substantially con — 332 — temporaneous with her death, and inseparable, as a matter of law, from it. The Corsair, 145 U. S. 335. In Cheatham v. Red River Line, 56 Fed. 248, damages were claimed for suffering while the deceased was struggling in the water before drowning. Held, there could be no recovery. Where one was struggling in the water 10 minutes'after being thrown in by the wrongful-act of the defendant, held that death was instantaneous. Sherman v. Stage Co., 24 Iowa, 515. See, also, Kennedy v. Standard Sugar Refinery, 125 Mass. 90 (28 Am. Rep. 214); Tully v. Railroad Co., 134 Mass. 499. The rule deducible from the above authorities, and we think also from sound reason, is that plaintiff must show that there was conscious suffering in order to sustain his suit for damages. It is not sufficient to show that the deceased might have lived a few moments after the accident. We are therefore of the opinion that the verdict based upon this count in the declaration cannot be sustained. Judgment reversed as to this count, and no new trial ordered. Moore and Long, JJ., concurred with Grant, G. J. Long, J. This suit is brought to recover damages for personal injuries caused to the plaintiff’s intestate by the collision of defendant’s trains through the negligence of defendant; also to recover damages for her death resulting from such collision, and also for loss of personal property. The first count of the declaration is upon the common-law liability for pain and suffering, etc., endured by the deceased prior to death, which, it is claimed, was not instantaneous, and the right of action for which, it is insisted, survives by section 7397, 3 How. Stat., and is for the benefit of her estate. Under this count plaintiff had verdict and judgment for $1,000. The second count is for loss of personal property, for which plaintiff had verdict and judgment for $110. The third count is for the benefit of William W. Sweetland, a brother of deceased, who, — 333 — it is claimed, was dependent upon her for support, and in whose interest the administrator claims the right to recover under sections 8313, 8314, 2 How. Stat. Under this count the jury found in favor of defendant. Defendant brings error. The provisions of section 7397, 3 How. Stat., have been in force since 1838. In 1846 it read: “In addition to the actions which survive by the common law, the following shall also survive; that is to say: Actions of replevin and trover, actions for assault and battery, or false imprisonment, or for goods taken and carried away, and actions for damage done to real or personal estate.” This statute was amended by Act No. 113, Pub. Acts 1885, by inserting into the original act the clause, “for negligent injuries to the person.” Sections 8313 and 8314, 2 How. Stat., are substantially a re-enactment of Lord Campbell’s act, omitting the preamble and third section, which was first incorporated into our statutes in 1848, and was amended in 1873. As amended, it reads as follows: “Section 1. 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 person who, or the corporation which,' would have been liable if death had not ensued,' shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. “Sec. 2. Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and the amount recovered in every such action shall be distributed to the persons and in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the'jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death to those persons who may be entitled to such damages when recovered.” — 334 — It will be noticed that until 1885 there was no statute in this State providing for the survival of actions for negligent injuries to the person, and no suit could be maintained after the death of the injured person for the pain and suffering arising from such injuries. Was it the intention of the legislature under section 7397 to give a right of action for the benefit of the estate in case of death from an injury, and also to allow the heirs to recover under sections 8313 and 8314 for their pecuniary loss ? I think not. The fact that the common-law right of action which survives under section 7397 is for the benefit of the decedent’s estate, and that the right of action under sections 8313 and 8314 is given for the benefit of the decedent’s heirs, can make no difference in the construction which I think should be placed upon these statutes. It was not the intention of the legislature to give two rights of recovery for the same injury which results in death. The act giving a right of action for damages for wrongfully causing death was passed by our legislature several years after the act providing for survival of actions, and was intended to provide the only remedy where death resulted from any wrongful act. If Mrs. Aldrich, the decedent, had lived long enough to bring suit against defendant for injuries, etc., and pain and suffering, both past and future, and the jury had awarded her damages, which had been paid, and then she had died from the same injuries so wrongfully inflicted, would it be held that the administrator might maintain another action under sections 8313 and 8314 ? Or, had she survived her injuries long enough to have settled with the defendant, and had so settled, would it be held that the administrator could maintain an action under these sections ? It is generally held that if the deceased had settled for injuries received in his lifetime, or recovered damages in an action, an action cannot be maintained, under Lord Campbell’s act, after his death. * Cooley, Torts, 264. It must follow, therefore, that if such judgment obtained by him in his lifetime or settlement so made by — 335 — him is a bar to a recovery by the heirs under sections 8313 and 8314, then a judgment obtained by the heirs for a cause of action accruing to them by survival under section 7397 would be a bar to the right to recover for his cleath under sections 8313 and 8314. In other words, it is apparent that it has not been the understanding of the courts and law-writers that such statutes intended to create two rights of action for the same wrongful act. It is true that repeals by implication are not favored in the law. There is, however, no such repugnance in these statutes that both cannot stand. Section 7397, which provides for the survival of common-law actions for negligent injuries to the person, applies to cases where death results from other causes than the wrongful injury. It seems to me that this is made plain from the terms of the statutes. In Rogers v. Windoes, 48 Mich. 628, the action was brought for the wrongful conversion of testator’s property d/uring his lifetime. The court below held that the action died with the person, and no action survived. It was held that the action did survive, and the judgment below was reversed. That case in no way conflicts with the interpretation which we give to these statutes. It is true that some language was used in. Hurst v. Detroit City Railway, 84 Mich. 544, which might be taken as holding that satisfaction under one of these statutes would be no bar to a suit under the other; but that question was not involved in that case, and the language was mere dictum. The. Illinois act passed in 1853 is almost identical with our sections 8313, 8314. The survival act of that State includes within the actions which survive, actions to recover damages for injury to the person. This last act was passed in 1872. In Holton v. Daly, 106 Ill. 131, one Michael Daly was injured, and brought suit, and recovered judgment, which was afterwards set aside. Subsequent to this he died intestate, and Mary Daly was appointed administratrix. She was substituted as party plaintiff in the cause, which was again tried, and resulted — 336 — in favor of plaintiff. The supreme court,,in construing the two acts, held that the death act applied, and that no recovery could be had under the survival act. The court said: “The act of February 12, 1853, applies, as we have seen, by its own terms, to all cases where ‘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.’ As was said in City of Chicago v. Major, 18 Ill. 356 ( 68 Am. Dec. 553), ‘The language is very broad and comprehensive, embracing in direct and positive terms, all cases where, if death had not ensued, the injured party could have maintained an action for the injury;’ and, as we have already observed, it is the wrongful act, neglect, or default that constitutes the cause of action. A light of action, which at common law would have terminated at the death, is continued for the benefit of the wife, husband, etc., and its scope enlarged to embrace the injury resulting from the death. There were left, however, injuries to the person not resulting in death, for which, in the event of the death of the injured party before obtaining judgment, no remedy was provided, affording a proper subject-matter for the act of 1872. If a party receiving injuries died from other causes, no action could be maintained under the act of February 12, 1853; but now, under the statute of 1872, the cause of action survives to his personal representatives. It is not to be presumed 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, or 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. We feel, therefore, constrained to hold that the act of 1872 was not intended to apply to cases embraced by the act of February 12, 1853.” In Chicago, etc., R. Co. v. O'Connor, 119 Ill. 586, it appeared that Jeremiah O’Connor, in his lifetime, brought suit against the railroad company for damages for personal injuries, and obtained judgment. An appeal was taken, and pending the appeal O’Gonnor died from causes other than the injuries complained of in the declaration. His — 337 — son was substituted as plaintiff in the suit. It was said by the court: “The action being for personal injuries caused by the negligence of the defendant, it is within the statute, and survives. There is nothing in Holton v. Daly, 106 Ill. 131, which holds to the contrary. Indeed, it is expressly therein recognized that such actions do survive upon the death of the plaintiff; and it was held, when the death is the result of the injuries for which the suit is brought, the action must be prosecuted, after the death, for the benefit of the widow and the next of kin, and that in such case there can be no recovery for the bodily pain and suffering, but that, when the death results from a cause other than the injuries for which the suit is brought, there may be a recovery, notwithstanding the death, fo» precisely the same injuries that the party himself could have recovered for, had he lived until after the final trial.” The statutes of Kansas are similar to our own. Section 420 of the compilation of 1879 is the survival act, and provides for the survival of actions to recover damages for an injury to the person. Section 422 of the same is the death act. In McCarthy v. Railroad Co., 18 Kan. 46 (26 Am. Rep. 742), these two sections were construed, and it was held that they must be construed in pari materia. The court said: “The purpose of section 422 is, evidently, not only to fix the amount of damages, and limit them to the use of the widow and children, or next of kin, but to take away the right of the administrator to sue for the benefit of the estate generally, where death resulted from the injuries. Section 420, as construed with section 422, only causes the action to survive for injury to the person when the death does not result from such injury, but does occur from other circumstances. The right of action under section 422 is exclusive, and an administrator could not maintain an ■ action under sections 420 and 422 for the same injury. When death results from wrongful acts, section 422 is intended solely to apply,”—citing Read v. Railway Co., L. R. 3 Q. B. 555; Andrews v. Railroad Co., 34 Conn. 57. — 338 — In Hulbert v. City of Topeka, 34 Fed. 510, where the action was brought by the administrator for injuries to the decedent in her lifetime, from which she died, Mr. Justice Brewer, before whom the cause was tried, held that no recovery could be had under section 420, and that, in cases of death from negligent injuries, section 422 applied. Justice Brewer was on the bench of the State court when the McCarthy Case was decided, and joined in that opinion; but in the case in the federal court he expressed some doubt about the correctness of the ruling in that case, though he followed it. This doubt seems to have been based upon the rule laid down in Needham v. Railway Co., 38 Vt. 294, where it was held that, where death occurs in consequence of a bodily injuiy, two causes of suit or action may arise,— one in favor of the decedent for Iris loss and suffering resulting from the injury in his lifetime, and revived by an act of 1847; the other founded on his death, or on the damages resulting from his death to his widow and next of kin, under an act of 1849. But, however much Mr. Justice Brewer may have been shaken as to the correctness of his conclusions in the McCarthy Case by the Needham Case, it seems that the supreme court of Vermont, in a later case (Legg v. Britton, 64 Vt. 652, decided in 1890), was not satisfied with the conclusions reached in the Needham Case in 1865. From that case it appears that as early as 1881 Judge Veazey of the Vermont court wrote an opinion, which met the approval of a majority of the court, in effect overruling some of the conclusions reached in the Needham Case. This opinion was not filed, as the case went off on other questions. In Legg v. Britton, supra, it was held that the act providing for the recovery of damages for the benefit of the widow and next of kin, where death results from the neglect or default of another, does not create a new and additional cause of action; thus fully overruling the Needham Case. In Louisville, etc., R. Co. v. McElwain, 98 Ky. 706 (56 Am. St. Rep. 385), the court, speaking of the two statutes, says: — 339 — “We cannot believe that the general assembly intended, that the personal representative should maintain an action for the death of the wife, -practically for the husband’s benefit, and allow at the same time the husband to maintain one, on his own account, for the same acts or negligence.” In Lubrano v. Atlantic Mills, 19 R. I. 129 (decided in 1895), the question was whether, under the statutes of that State, an administrator had the right to maintain two actions for negligence resulting in death,— one for the benefit of the widow find next of kin, according to Lord Campbell’s act; and another for the damage to the person, under the statute for the survival of actions. The action was brought for the pain and expense arising from injuries to the plaintiff’s intestate before his death, which resulted therefrom. The defendant pleaded a judgment in its favor in a suit by the plaintiff in the same cause of action. The plaintiff replied that the former action was brought by him as trustee for the next of kin of the deceased, and in a different right from that involved in the present action, which was for the benefit of the estate. To this replication defendant demurred, and the demurrer was sustained. In substance, these statutes are like our own. The opinion of the court in that case is so well reasoned, and the cases which seem to differ from the correct principle so well explained, that I quote from it at some length. In speaking of the survival statute, the court said: “It is under this section that the plaintiff claims. In support of his claim he relies on Bradshaw v. Railway Co., L. R. 10 C. P. 189; Leggott v. Railway Co., L. R. 1 Q. B. Div. 599; Barnett v. Lucas, 6 Ir. C. L. 247; Bowes v. City of Boston, 155 Mass. 344; and Needham v. Railway Co., 38 Vt. 294. . “The opinion in Bowes v. City of Boston is based upon the statutes of Massachusetts, and holds that two actions, one for the benefit of the family and one for the benefit of the estate, may proceed at the same time, on independent’ grounds, and for different purposes. It cites no authority. In Needham v. Railway Co. the point decided was that, the injury to the deceased having occurred in New Hamp — 340 — shire, where no right of action in either form survived, the plaintiff could not maintain action therefor in Vermont. The dictum relating to two causes of action has been recently overruled in Legg v. Britton, 64 Vt. 652. Barnett v. Lucas was an action for injury to personal estate, and is, therefore, not in point. Bradshaw v. Railway Co. was on demurrer to the declaration, which alleged a breach of contract to carry a passenger safely, and it was held that the action could be maintained, notwithstanding the fact that provision for compensation for the death was made by Lord Campbell’s act. The case was decided in 1875; and Leggott v. Railway Co., decided in 1876, was a case upon a similar contract, to which the defendant pleaded a denial of the averments of fact, and a recovery by-the plaintiff under Lord Campbell’s act. The plaintiff replied that the defendant was estopped by the judgment in the former case to deny the facts, and to this, replication the defendant demurred. The court held that there was no estoppel, because the plaintiff sued in a different right; and, in so deciding, followed Bradshaw v. Railway Co., but not without protestation. Mellor, J., said: ‘With the single exception, so far as I am aware, of the case in the common pleas (Bradshaw v. Railway Co.), there appears to be no authority that an action will lie by the executor in respect of what is claimed in this action; but, as that case has been decided on the very point, I entirely yield to the authority of the decision so far as to say that in this court it cannot be questioned, and we must, therefore, abide by it.’ In Pulling v. Railway Co., L. R. 9 Q. B. Div. 110, the Bradshaw Case was further commented upon. Denman, J., said: ‘None of the authorities go so far as to say that, where the cause of action is in substance an injury to the person, the personal representative can maintain an action merely because the person so injured incurred in his lifetime some expenditure of money in consequence of the personal injury. The case of Bradshaw v. Railway Co. certainly does not go to that length, because the judgments in that case are expressly based upon the distinction, in this respect, between actions of contract and actions of tort, and upon the fact that in that case the action was an action of contract.’ The opinion (Pollock, B., concurring) decided that the plaintiff could not sue for damage to the intestate’s'person. In view of these comments, the support which the Bradshaw Case gives to the plaintiff turns out to be more apparent than real. — 341 — “Prior to these cases, that of Read v. Railway Co., L. R. 3 Q. B. 555, had been decided in 1868, holding that satisfaction received by the deceased in his lifetime for the injury was a bar to a suit for the death. That case stated the principle upon which the compensatory act is founded. It creates no new cause of action by reason of the death, but gives a new right of recovery in substitution for the right of action which the deceased would have had if he had survived. Upon this principle the new remedy must be exclusive, since otherwise there would be two recoveries for the same cause of action, namely, the negligence of the defendant, which is the cause of action on which the deceased would have sued at common law if he had survived. Moreover, the recognized rules of construction lead to the conclusion that the remedy for the death is exclusive. While the act relates to a remedy, it is, nevertheless, in derogation of the common law, because it gives a right of action where none existed at common law; and so it should be strictly construed. The provisions for survival of actions for damages to the person and for the remedy for the death have been embodied in the same statute in this State since 1857, although the latter was first adopted. The general provision should not be construed to modify the special, since the intention to modify the former statute by giving an additional remedy is not plain, and both can stand together; the act for survival embracing damages to the person other than those which result in death. This is the construction which was given to precisely similar provisions in Holton v. Daly, 106 Ill. 131, where it was held that the only cause of action was the wrong done,- irrespective of consequences, and that a statute of survival subsequently passed did not give a remedy additional to that of the prior act relating to the death. * * * So in Chicago, etc., R. Co. v. O’Connor, 119 Ill. 586, it was held that where the plaintiff, pending an action for injuries, dies from some other cause than the injury, the action survives, and may be prosecuted by his administrator. In McCarthy v. Railroad Co., 18 Kan. 46 (26 Am. Rep. 742 ), where both provisions, for action for death and for survival of an action for injury to the person, had been embodied in a revision, as in our own statutes, it was held that they must be construed in pari materia, and that the latter provision applied only to cases where the death did not result from the injury. This decision was followed in Hulbert v. City of Topeka, 34 Fed. 510.” — 342 — In Griffiths v. Earl of Dudley, L. R. 9 Q. B. Div. 357, Field, J., said: “Read v. Railway Co., L. R. 3 Q. B. 555, 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.” • In Canadian Pacific R. Co. v. Robinson, 19 Can. Sup. Ct. 292, Taschereau, J., quotes with approval the language of Field, J., in Griffiths v. Earl of Dudley, supra. In Wood v. Gray, [1892] 17 App. Cas. 576, it appears that a workman, having been injured through the fault, as he alleged, of his employers, brought an action against them for damages. While the action was pending, he died, intestate and unmarried. His mother was appointed his executrix, and she raised a second and concurrent action for solatium for her son’s death, and asked that the second action should be remitted to the same jury who were to try the first. It was held, affirming the court of sessions, that the second action was incompetent. Lord Watson, who delivered the opinion of the House of Lords, among other things, said: “There is not a single instance in which the court has allowed two actions to be brought in respect of the same negligent act leading to the injury and death of one person. Even in cases where the right of relatives to sue has been recognized, they must bring one suit, and one only, in which the damages- due to them respectively may be assessed. In that state of the law, I do not think this House ought to encourage the creation of a new right and corresponding liability which are at present unknown in Scotland.” Lord Field, concurring in that opinion, said: “The appellant did cite to your lordships a great many cases. I have been carefully through them, and have considered them, and it seems to me, as far as I can follow the question, that there is no foundation whatever for the appellant’s contention.” — 343 — That two actions cannot be maintained for the same wrongful act, see Bigelow v. Nickerson, 17 C. C. A. 1, 70 Fed. 113; The City of Norwalk, 55 Fed. 98; Steamboat Co. v. Chase, 16 Wall. 532; Dibble v. Railroad Co., 25 Barb. 188; Proctor v. Railroad Co., 64 Mo. 119; Fowlkes v. Railroad Co., 5 Baxt. 663. In a late case in Kansas, decided July 10, 1897, —Margin v. Railway Co., 58 Kan. 475,— it was held that section 420, the survival statute, permits actions to survive for injury to the person only when death does not result from the injury, but occurs from other causes; but, however, where death results from the wrongful act or omission of another, section 422, the death act, is exclusive. That court cites in support of that rule of construction: Andrews v. Railroad Co., 34 Conn. 57; Read v. Railway Co., L. R. 3 Q. B. 555; Chicago, etc., R. Co. v. O’Connor, 19 Ill. App. 591; Holton v. Daly, 106 Ill. 131; Chicago, etc., R. Co. v. O’Connor, 119 Ill. 586; Tiff. Death Wrongf. Act, § 119. In Hill v. Railroad Co., 178 Pa. St. 223 (56 Am. St. Rep. 754), decided by the supreme court of Pennsylvania November 9, 1896, it appeared that an act of 1851 of that State provides that no action for personal injuries by. negligence or default shall abate by reason of plaintiff’s death, ■but shall'survive to his personal representatives, and that, ■where the injured person did not s.ue during his life, his widow or personal representative may sue; that an act of 1855 extends the right of action to children and parents of a decedent, and provides for the distribution of damages recovered. It was held that a widow was not given an independent cause of action for an injury causing her husband’s death which he could not in his lifetime release ■ or compound. In that case the court cites Read v. Railway Co., L. R. 3 Q. B. 555, and the opinion of Lush, J., with approval, in which he said: “ The intention of the statute is, not to make the wrongdoer pay damages twice for the same wrongful act, but to enable the representatives of the person injured to re — 344 — cover in a case where the maxim ‘Actio personalis moritur cum persona1 would have applied. It only points to a case where the party injured has not recovered compensation against the wrongdoer.” I am aware that in some of the States it is held by the courts that two actions may be maintained under statutes somewhat similar to our own; but the case of Needham v. Railway Co., 38 Vt. 294, we have seen, has been effectually overruled by the later case of Legg v. Britton, 64 Vt. 652, and the case of Bowes v. City of Boston, 155 Mass. 344 (15 L. R. A. 365), shown not to be well reasoned, by the Rhode Island court, in Lubrano v. Atlantic Mills, 19 R. I. 129. In Vicksburg, etc., R. Co. v. Phillips, 64 Miss. 693, it is held that two actions may be maintained under somewhat similar statutes to our own; but the court cites no cases sustaining such a rule, though counsel for plaintiff in that case in their brief seem to rely upon Needham v. Railway Co., supra. In Davis v. Railway, 53 Ark. 117, the court seems also to have relied upon Needham v. Railway Co., supra. In the case of Hedrick v. Navigation Co., 4 Wash. 400, decided by the supreme court of Washington in 1892, the statutes treated of are very different from our own, and the case is not authority for the contention made for it. It is claimed that, in construing these acts, the amendment of 1885 of the survival act must speak from the date of the original act. This is undoubtedly true. But it has never been contended in this State, so far as I can ascertain, until the present action was brought, that a cause of action survives for a negligent injury, or for an assault and battery, where death results from the wrongful act, though these two statutes have been on the statute books for 50 years, and the amendment of 1885, as to negligent injuries, over 12 years. Apparently it was thought by the profession that actions in such cases must be brought under the death act, as no one ever before claimed that two actions would lie for the same wrongful act. From the history of the cases in this State, it is at once — 345 — apparent what the legislative intent was in passing the amendment of 1885. Prior to that time, if the party negligently injured brought suit for damages, and died, during the pendency of the case, from some other cause than the negligent injury, the suit immediately abated, and no right of action accrued to his personal representatives under sections 8313 and 8314, because his death was not the result of the wrongful act or omission. * The profession was often confronted with this condition, as all such suits abated by the death of the party. But since 1848, when death resulted from the wrongful act, actions could be maintained under the death act. It was not necessary to amend either statute to give a right of action where death did result from the wrongful act. That right already existed. The purpose of the legislature, therefore, was to provide a remedy when one was lost by the death of the party, by the survival of the action which the party himself might have brought in his lifetime for wrongful injuries not resulting in death, and which cause of action did not survive under the former acts. The only logical construction of these statutes, so as to give effect to both, is that the death act applies to cases of death caused by wrongful injuries, while the survival act applies to cases of personal injuries not causing death. If these two acts had been passed at the same time, each being embodied in different sections of the same act, what ground would this have afforded for the contention that the survival section applies to injuries resulting in death? We should then have to reconcile and render operative both sections, as now. The question of the legislative intent of the survival- provision in reference to injuries causing death would still be open. The illogical result of holding that the survival provision was intended to cover cases of wrongful killing would still be presented, and would force the conclusion that the legislature intended that the survival provision should apply only to personal injuries not causing death. If we start with the survival act as in existence at the date when the death act — 346 — was passed, the result is not changed. We then have an act which provided for the survival of actions for personal injuries, followed by another giving a right of action for personal injuries resulting in death. It cannot be contendéd that the survival act conferred a right of action for wrongful killing. More definite and specific language indicative of the legislative purpose to do this would be required. •> In Illinois the death act was passed first. In Holton v. Daly, supra, both these Illinois statutes were construed, and it was held that both should be given effect; that, where death occurred from the injury, the death act applied, and, where the person died from some other cause than the injury, the survival act applied. This decision was not based upon the fact that the death act was first passed. In Rhode Island the survival act was passed first; and the court, in the Lubrano Case, supra, construed these statutes with the same result as reached in Holton v. Daly, and by the same reasoning, that both acts must be construed together. In the McCarthy Case, supra, it appeared that both acts were passed and took effect upon the same day, and effect was given to both, and it was held that the survival act applied to cases only where the death resulted from some, other cause than the wrongful act. In all the cases cited by counsel .where a different result has been reached, the decisions have been based upon the ground that Lord Campbell’s act created a new cause of action. I think there is nothing, either upon principle or authority, in the fact that one act was passed before the other, which affects the construction to be given these statutes. The real question is (both statutes being in force), how should they be construed so as to give effect to both? And I think the only logical construction is that given by most of the cases; that is, that the survival act applies to cases of negligent injuries to the person that are not fatal, and that Lord Campbell’s act applies to fatal cases. But it is suggested that another view might be taken of these statutes, which would give a definite and certain — 347 — -rule; that is, that where a person is injured, andi survives the injury for a time, a right of action accrues to him, which survives in case of his death before judgment, and that in such case the death act has no application; but that, if the person is killed outright, no right of action ■could accrue to him, and therefore none could survive, and the death act would necessarily furnish the only relief. Let us see how this construction would leave the parties ■who were dependent upon the deceased. Under the survival act, the amount recovered goes into the estate for the benefit of creditors, and, if the estate be insolvent, the -creditors might receive every dollar of the amount. Is it possible that the legislature was so solicitous for the creditors of the deceased that a limitation was put upon the death act, and a recovery under that act (the proceeds of which go to the dependent ones) made possible only when the death was instantaneous ? To illustrate: Suppose A. is 30 years of age, has a wife and children, earns $125 per month, and receives an injury which he survives one hour. Dui'ing that hour a right of action has accrued to him. The death act, then, has no application to the case, and no recovery can be had under it. The administrator, under such a construction, could recover under the survival act for the pain and suffering caused by the injury, which might be merely nominal, and this would go to the creditors if the estate were insolvent. If the action could be brought under the death act, the widow and children would receive the whole of the fund recovered, and the ■damages would be founded upon the pecuniary loss of those dependent upon the deceased. It cannot be possible that the legislature ever intended such a limitation upon the death act. A recovery under the death act has always been permitted in this State when the death results from the wrongful act, and this without regard to whether the -death was instantaneous or not. In Van Brunt v. Railroad Co., 78 Mich. 530, it appeared that the plaintiff’s intestate was injured January 1, 1888, and died from the injuries on the next day. On — 348 — the trial it was shown that the deceased was an unmarried man, and had no one dependent upon him for support. The court below directed the verdict in favor of defendant. In this court the case was fully considered, and it was assumed that, if the plaintiff had been able to show-pecuniary loss by next of kin, a recovery might be had. A point was made that a recovery might be had under the survival act, and that point overruled. In Hunn v. Railroad Co., 78 Mich. 513 (7 L. R. A. 500), plaintiff’s intestate, a fireman, was killed in a collision of defendant’s trains. The action was brought under the death act. Just how long he survived the injury does not appear, but that fact was ignored. The case was reversed upon the ground that the court improperly admitted certain testimony, and a new trial was granted. In Sweet v. Railroad Co., 87 Mich. 559, plaintiff’s intestate was injured by striking against a shed adjacent to the track. He lived 30 minutes after the accident. The action was brought under the death act, and judgment was rendered for $5,000, and was affirmed in this court. Mr. Justice Gbant dissented, but not on the ground that the action could not be sustained under the death act. In Richmond v. Railway Co., 87 Mich. 374, plaintiff’s intestate, a street-car driver, was killed in a collision of the defendant’s cars With the street car he was driving. The injur3’ occurred about 4 or 5 o’clock in the afternoon, and he survived until the evening of the same day. The action was brought for the benefit of the mother and an invalid sister, and a recovery had under the death act. The judgment was for $5,313, and was affirmed in this court. Justices Gbant and Champlin dissented, but not upon the ground that the action could not be maintained under the death act. In Schlacker v. Mining Co., 89 Mich. 253, the action was under the death act. The plaintiff’s intestate was injured, and survived several days. The fact that the death was not instantaneous was ignored. The judgment was reversed, and a new trial ordered. — 349 — In O’Donnell v. Railway Co., 89 Mich. 174, though the deceased lived about an hour after the injury, the action was brought under the death act, and no one questioned that the act was applicable if the circumstances had been such that a recovery might have been had. In Pennington v. Railway Co., 90 Mich. 505, plaintiff’s intestate was injured while switching cars. He survived six hours. The action was brought under the death act. Plaintiff recovered in the court below for the pecuniary loss sustained by the widow and children, and for the expense of his care, nursing, and funeral expenses. While the case was reversed, no one questioned the right of recovery upon the ground that the action could not be maintained under this act, or questioned that the damages claimed could be recovered as claimed if the defendant had been guilty of the several acts of negligence averred in the declaration. In Racho v. City of Detroit, 90 Mich. 92, it appeared that the plaintiff’s intestate was injured June 25, 1889, and died June 10, 1890. No action was instituted in the lifetime of the intestate. After his death the widow, as administratrix, brought suit under sections 8313, 8314, 2 How. Stat. The lower court directed verdict and judgment in favor of defendant. That judgment was reversed, and a new trial ordered; it being held that the widow, as administratrix, could recover under the above sections of the statute. Not one of these cases could have been maintained if these statutes had been construed as now contended for, for in no case was the death instantaneous. Other cases of like character might be cited. I have examined the cases with some care, for the purpose of ascertaining in what proportion of them the death was shown to have heen instantaneous, and find but very few. If, therefore, the death act can be applied only to cases where the death is instantaneous, it should be amended in order that the widow and children of the deceased may have some benefit under it. From the cases it appears that few persons were — 350 — killed who did not have someone dependent upon them, and that few were killed outright. Are we, by construction of the statute, to cut off all the rights which such dependents may have? No case can be found in this State giving such construction, though this statute (the death act) has been upon the statute books for upwards of 50 years. I am aware that in Maine this construction is given to a similar statute. State v. Maine Cent. R. Co., 60 Me. 490. But in no other jurisdiction is such a limitation put upon the death act, that I am aware of. In-Massachusetts a contrary view is expressly held under a statute similar to the Maine statute. Com. v. Metropolitan R. Co., 107 Mass. 236. It should be held that the plaintiff could not maintain this action under the first count of the declaration. The only remedy was under sections 8313 and 8314. Grant, C. J., concurred with Long, J.