not mentioned in the statute, which is now consideration. He was not only a great lawcodified as § 4046 of the Civil Code. Para- yer, but a scholar as well, and must certaingraph 20 of § 1 of article 1 of the Constitu- ly have known the meaning of the words tion of our state (Civil Code, § 5717), in used, and what would be their effect, and the Bill of Rights, says: "The power of the must have used them with reference to their courts to punish for contempts shall be lim- ordinary meaning, as defined by lexicographited by legislative acts." We think that ers. Taking these words in this sense, it is neither a literal nor a liberal construction clear to us that the only power given to the of this paragraph can make it mean what legislature was the power to fix the limit of counsel for the plaintiffs in error insisted the punishment which the courts could init did mean. The word "power," used in flict for contempts. Before that time, courts this connection, and as applied to courts, were not restricted, in punishing contempts, means "the right, ability, or faculty of doing to any certain sum or to any certain period something." Bouvier, Law Dict. 2d ed. title of imprisonment. Knowing the fallibility Power. It is "the ability to act, regarded of human nature, and perhaps believing, as latent or inherent; the faculty of doing from his experience and practice in the or performing something; capacity for action courts, that a judge sometimes took a conor performance." Webster. The word "pun- tempt as personal, rather than as a contempt ish" is defined by Webster to mean "to im- of his authority or office, and punished it too pose a penalty upon; to afflict with pain, severely, and knowing, also, that the legisloss, or suffering for a crime or fault; . lature would have no power, without a conto inflict a penalty for (an offense) upon the stitutional provision, to control the judge in offender;" and by Anderson, "to impose a this matter, Mr. Cobb doubtless inserted this penalty for the commission of a crime." Giv- provision in order to give the legislature ing to these two words their ordinary and power to restrict and limit the amount or usual meaning, the paragraph would read as quantum of punishment which could be infollows: "The right or authority of the flicted. We are strengthened in this view by courts to impose penalties or inflict punish- certain provisions inserted by Mr. Cobb in ment for contempts shall be restricted by his codification of the laws of the state. legislative acts." If the framers of the Con- From a diligent search of the statutes in stitution had desired that the legislature force prior to 1861, we can find no act of the should classify and define contempts of legislature which attempted to restrict the court, they would certainly have put in this amount of punishment to be imposed for conparagraph, or in some other, words express- tempts of court, the only hint at it being in ly giving the legislature power to do so. Had the judiciary act of 1799, which prescribed they said that the legislature should have the practice in summoning jurors, and depower to define what are contempts, there clared they should be fined $300 for nonapcould be no possible doubt upon the subject. pearance. When Mr. Cobb came to codify Many illustrations could be given of where the laws of the state, he knew that there Constitutions give to the legislature power was no act limiting the punishment for conto define offenses and to fix the punishment tempt, and we first find a limitation upon for the same, but we think that nothing of the amount of such punishment in the Code the sort, in regard to contempts, is contained of 1863. In that Code were sections limitin our Constitution. Where a court is estab-ing the amount of punishment for contempts lished by the Constitution, it is given all the powers usually possessed by all courts, and we will not construe another provision of the Constitution so as to take away from the court a power which is essential to its preservation, and to its accomplishment of the purposes for which it is created, unless constrained to do so by express words or necessary implication.

The power to limit the punishment of contempts was first given the legislature by the Constitution of 1861. The chairman of the committee on the revision of the Constitution in that convention was T. R. R. Cobb, who, in my opinion, was the greatest lawyer this state has ever produced, and who had, I think, no superior in any other state. His codification of the common law, of equitable principles, of the statutes of this state, and of the decisions of this court will stand as a monument to his great learning, research, and ability as long as our system of laws prevails. Being chairman of the committee which reported the Constitution of 1861, he doubtless drafted the paragraph now under

in the supreme and superior courts and courts of ordinary. These sections were doubtless inserted by him to carry out the provisions of the paragraph of the bill of rights quoted above. They limit the punishment for contempt by prescribing the maximum of fine or imprisonment which could be imposed. They apparently show Mr. Cobb's construction of the constitutional provision, and they have been adopted and incorporated in all succeeding Codes of this state.

If these views are correct, it follows, as a necessary consequence, that constitutional courts are not, in dealing with contempts, restricted exclusively to the acts specified in § 4046 of the Civil Code, and that the legislature had no power, so far as these courts were concerned, to take away the inherent power to punish for contempt. Such a court may still "go beyond the provisions of the statute in order to preserve and enforce its constitutional powers by treating as contempt acts which may clearly invade them." Rapalje, Contempt, § 11. Tamper

ing with a juror or officer of court, corrupt- | SOUTHERN BELL TELEPHONE & TELEing or attempting to corrupt him, bribing or GRAPH COMPANY, Piff. in Err., attempting to bribe him, are held by all

v.

(111 Ga. 575.)

courts to be contempts. Nor does it make Georgia A, CASSIN et al., by Next Friend. any difference that the same act is indictable under the penal laws of the state. On this subject, Judge Seymour D. Thompson, in an admirable article in 5 Crim. L. Mag. says (p. 155): "The power of the courts in this regard being founded in the principle of selfpreservation, it does not at all go to deprive them of it that the law has provided some other mode for punishing the offender. It is quite immaterial that the offense is indictable. Courts are not obliged to trust the preservation of their dignity and authority to such weak agencies as information, in

*An action for the homicide of a husband or father, alleged to have been occasioned by a physical injury, is not maintainable when it appears that he, while in life, voluntarily settled with the wrongdoer therefor, and discharged the latter from all liability for the damages resulting therefrom. (Cobb and Lewis, JJ., dissent.)

Reversed.

(August 9, 1900.)

The facts are stated in the opinions. and Arthur Heyman, for plaintiff in erMessrs. Dorsey, Brewster, & Howell

ror:

The judge erred when he struck out the plea of former suit, and settlement of this suit, by the party injured.

If the ruling was correct the question of contributory negligence, either in bar or in mitigation of damages, would be excluded, just as in the suit of a tender child the question of contributory negligence is excluded.

The supreme court has always held that the contributory negligence of the deceased would bar or diminish recovery.

Berry v. Northeastern R. Co. 72 Ga. 137; Central R. & Bkg. Co. v. Brantley, 93 Ga. 259, 20 S. E. 98.

The suit at bar receives its vitality from the statutes of the state, enacted by our leg

dictment, and trial by jury, it may be before ERROR to the City Court of Atlanta to some other tribunal, where the success of review a judgment in favor of plaintiffs the prosecution and the conviction of the in an action to recover damages for the aloffender may depend upon the zeal of a pros-leged negligent killing of plaintiff's father. ecuting witness, of the state's attorney, or upon circumstances purely accidental. Besides, the exigencies may not admit of so tardy a remedy." See the authorities cited in the footnote, and see, also, 2 Bishop, New Crim. Law, § 264. On the general subject of contempts and the power of the legislature to regulate their punishment, see an admirable treatise by Judge Bailey in his work on Jurisdiction (vol. 1, §§ 287 et seq.). In the argument of this case, counsel cited many decisions of the United States courts construing the act of Congress of March, 1831, of which section 4046, of our Code is substantially a copy. These decisions simply hold that the circuit and district courts, being the mere creatures of Congress, are bound by the act of Congress defining what contempts shall be punishable. Judge Field, in Ex parte Robinson, 19 Wall. 505, 22 L. ed. 205, puts his decision on that ground, and virtually holds that the Supreme Court of the United States, being a constitutional court, would not be bound by the act. So, while in this state courts created by the leg islature are bound by § 4046 of the Civil Code, our superior courts, being created by the Constitution, and having the inherent power to decide what are contempts and to punish for contempts, cannot be controlled in this respect by the legislature. The latver has no more power to abridge, restrict, or modify the jurisdiction of the superior courts over contempts than it has to abridge their jurisdiction over matters conferred upon them exclusively by the Constitution, such as the trial of title to land and the like. The constitutional provision giving the legislature power to limit the power to punish for contempts does not authorize it to define or classify contempts, but only to fix the maximum amount of punishment to be imposed after the contempt has been adjudicated.

Judgment in each case affirmed.

All the Justices concur.

islature.

The supreme court has under our statute made the widow or children the substituted plaintiff for the injured party.

cause of action in the husband or father There must have been a ripe and suable which was cut off by his death, in order that his widow or children might maintain the action for his death.

Macon & W. R. Co. v. Johnson, 38 Ga. 409; David v. Southwestern R. Co. 41 Ga. 223; Hendricks v. Western & A. R. Co. 52 Ga. 467; Western & A. R. Co. v. Strong, 52 Ga. 461; Atlanta & R. Air Line R. Co. v. Ayers, 53 Ga. 12; Southwestern R. Co. v. Johnson, 60 Ga. 667; Central R. & Bkg. Co. v. Roach, 64 Ga. 635; Berry v. Northeastern R. Co. 72 Ga. 137.

*Headnote by SIMMONS, Ch. J.

NOTE. That the statutory right of action for death gives the beneficiary no right that the deceased, if still living, could not assert, see Hughes v. Auburn (N. Y.) 46 L. R. A. 636.

As to effect of release by injured party to prevent right of action after his death for injuries which caused his death, see note to Louisville & N. R. Co. v. McElwain (Ky.) 34 L. R. A. 788, and Hill v. Pennsylvania R. Co. (Pa.) 35 L R. A. 196.

In Georgia a negligent homicide in the in-viding that the verdict, in case of death, stances named by the statute gives a right of action to certain designated persons.

either as a bar to her recovery, or to be considered by the jury in reducing the amount of the verdict. A decision which would announce, to persons who have settled with parties injured, that the settlement, instead of being in full, was only partial; that, if death ensues as a result of the injury, they must pay again, and this time the full value of the life of the deceased,-will be justly regarded as a great hardship, and it will come to the widow and children, not as the grant of a right heretofore unjustly withheld, but as a second payment of a claim already satisfied.

lence is to be taken as more indicative of approving than disapproving this line of cases. For many years the court has permitted a widow, and, if no widow, the children, to recover for the homicide of the husband or father. During that period hundreds of instances have occurred in which the husband was injured, and has received compensation therefor. In the very nature of things, many of these physical injuries impaired health, and probably hastened death, and yet no suit therefor has until within recent years been brought by the widow of such person. Evidently, by the common understanding of the community, payment to the husband-accord and satisfaction between him and the defendantwas regarded as a settlement of all liability growing out of the negligent act. See Lubrano's Case, 19 R. I. 129, 34 L. R. A. 797, 32 Atl. 207. We feel safe in saying that many adjustments have been made upon this idea which would not otherwise have been made, and that giving to the statute the effect now insisted upon would not only be a great hardship upon defendants who, relying and acting upon the heretofore generally accepted view of the law, have paid their money and bought their peace, but it would be giving to widows something which they did not expect, where a settlement had been made by the head of the family.

But it is said that no decision that a

suit by or for the wife is of any value in
this case, unless it was rendered by a court
which holds that the survival and death acts
create new and distinct causes of action.
This, therefore, must be borne in mind in
estimating the weight of the authorities cit-
ed. In reading them with this prominently
in view, it is remarkable to note the various
expressions used in the effort to define the
relation which the action by or for the
widow bears to the action in favor of the
the courts may be said to call it a "new
Some-in fact, all,-of
injured husband.
cause of action," as in Western & A. R. Co.
V. Bass, 104 Ga. 390, 30 S. E. 874. Some
call it a “new, but not an independent, cause
of action." Cooley, Torts, 264, speaks of it

Examining the decisions in England under Lord Campbell's act, and the decisions under similar statutes enacted by the various states in the Union, we find that sometimes the right of action is vested in the injured party, and survives to his personal representatives or family. Sometimes a cause of action for the death is given to the personal representatives, who sue for the benefit of his estate, or sometimes for the benefit of persons who are dependent on him. In such cases the personal representative is trustee for these beneficiaries, and not for the estate. In other cases the widow or children are given directly the right of action for the death of the husband. But these differences are all incidental. Tiffany, Death by Wrongful Act, § 24. Each of these statutes had the same purpose as our own. Differing as to details, they are all intend-release by the husband bars a subsequent ed to give the personal representatives, or the members of the family, or whomsoever the plaintiff might be, a right to recover against "the person who would have been liable if death had not ensued." In Little wood v. New York, 89 N. Y. 24, 42 Am. Rep. 271, the court had under consideration an act giving the personal representative a cause of action for death, and said: "The main purpose was to deprive the wrong doer of the immunity from civil liability. The entire gist of the first section is that the wrongdoer shall be liable to an action for damages notwithstanding the death of the person injured. It does not provide that the wrongdoer shall be liable notwithstanding other defense he might have had at the time of the death, but merely that the death of the party injured shall not free him from liability, showing that this is the point at which the statute is aimed." Most of these statutes are absolutely silent as to the effect of settlements made by the husband in his lifetime, and yet notwithstanding this silence the courts have generally held that such settlement was a bar to another suit against the same party, as the act was not intended to "give two actions for a single injury." Sawyer v. Perry, 88 Me. 42, 33 Atl. 660. Some of these decisions had been rendered before our act of 1887, and are fairly to be presumed to have been within the knowledge of the legislature when revising the law on the subject of death by wrongful act. If that body had intended to change this well-known construction as to the effect of settlement, it would have said so. Its si

any

as an

"enlargement" or "continuation." Some call it a "new remedy." Others hold that there is one cause of action, and, if this is not extinguished during the life of the injured party, it survives, and may become two causes of action. Others say: "The cause of action for the homicide is contingent on the death of the injured party without having satisfied his claim for damages." But, notwithstanding this variety of expressions, there is substantial unity in holding that a release by the husband bars the wife; this view being taken even by those courts which insist most strongly that the two acts create two causes of action, and by courts, also, which rule that concurrent suits may be maintained. However new it may be, in the very nature of things it cannot be independent. It is inherently rooted and grounded in the injury to the husband.

any suit at all. It is perhaps improper to consider the act of 1889 (Civil Code, § 3825) as strictly a survival statute, for it does not create or preserve a cause of action, as such, though it does preserve pending suits. It is not so much a survival statute as one to prevent the abatement of cases actually in court; for, if the injured party dies before bringing suit, his administrator could not institute an action for the pain, suffering, and diminished capacity to labor, as was expressly held in Frazier v. Georgia R. & Bkg.

It grows out of it, and is a part of it, having almost complete identity of substance, and subject to the same defenses. More than a dozen courts have directly passed upon the effect of a release by the husband, and all except those of Massachusetts and Kentucky have held that it bars a suit after his death. Com. v. Boston & L. R. Corp. 134 Mass. 211; Com. v. Vermont & M. R. Co. 108 Mass. 7, 11 Am. Rep. 301; Donahue v. Drexler, 82 Ky. 157, 56 Am. Rep. 886; Louisville & N. R. Co. v. McElwain, 98 Ky. 700, 34 L. R. A. 788, 34 S. W. 236; Little-R. Co. 101 Ga. 79, 28 S. E. 662. The act of wood v. New York, 89 N. Y. 24, 42 Am. Rep. 1889 is by no means so broad as the sur271; Legg v. Britton, 64 Vt. 652, 24 Atl. vival statutes of some of the other states, 1016; Hill v. Pennsylvania R. Co. 178 Pa. which do preserve the cause of action for 223, 35 L. R. A. 196, 35 Atl. 997; Hecht's an injury, whether a suit had been brought Case, 132 Ind. 507, 32 N. E. 302; Fowlkes thereon, or not, in the lifetime of the injured v. Nashville & D. R. Co. 9 Heisk. 829; Hol- party. But, even if we treat the act of 1889 ton v. Daly, 106 Ill. 131; Price v. Richmond as being a survival statute, in the fullest & D. R. Co. 33 S. C. 556, 12 S. E. 414; Walk-sense, and then undertake to discuss the erton v. Erdman, 23 Can. S. C. 352; Read v. right to maintain concurrent suits, we Great Eastern R. Co. L. R. 3 Q. B. 555, de- would be no nearer a solution of the difficided in 1868, and other English cases. To culty, so far as the authorities are conwhich may be added the positive dicta in cerned; for it will appear the courts have the Sweetland Case, 117 Mich. 329, 43 L. R. been frequently called on to determine what A. 568, 75 N. W. 1066, 1078, both in the con- effect the survival act has upon the death curring opinion of Long, J., and in the dis-act, and vice versa,-whether the remedy senting opinion of Hooker and Montgomery, JJ., and the equally positive statement of the supreme court of Wisconsin in Brown v. Chicago & N. W. R. Co. 102 Wis. 137, 44 L. R. A. 579, 77 N. W. 748, 78 N. W. 773. The right of the plaintiff to recover in this case notwithstanding the release is said to grow out of the language of our statutes, creating two causes of action,-one for the injury, and the other for the homicide,-and that a settlement of one is not a settlement of the other; it being urged that the survival act of 1889 (Civil Code, § 3825), when construed in connection with the death act (Civil Code, § 3828), logically supports the theory that the two suits may proceed concurrently, and that a recovery for the injury would not be a bar to a recovery for the death. And Vicksburg & M. R. Co. v. Phillips, 64 Miss. 693, 2 So. 537, and Davis v. St. Louis, I. M. & S. R. Co. 53 Ark. 117, 7 L. R. A. 283, 13 S. W. 801, which are relied on, certainly sustain the proposition that "concurrent suits may be maintained." But the right to maintain concurrent suits is not involved in this case. What we are to determine is the effect of a release. The two questions are not identical. If the effect of a release is to destroy the vital principle of the cause of action, neither single nor concurrent suits can spring therefrom. If, however, no release has been signed, and the injured party dies, leaving in force a live cause of action, there might arise the question whether from this living germ only one suit, or concurrent suits, could spring. 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

under one is exclusive, or whether the two acts confer two remedies, with the right to maintain concurrent actions. The cases are more in conflict than those which pass upon the effect of a release, at any rate, are far more evenly balanced. Some of them hold that under the survival act and the death act "two separate and distinct causes of action are created, which may coexist, but have no connection, and that these two actions may be prosecuted concurrently." This view is forcibly presented in Needham v. Grand Trunk R. Co. 38 Vt. 294,-a view which is followed and elaborated in Davis v. St. Louis, I. M. & S. R. Co. 53 Ark. 117, 7 L. R. A. 283, 13 S. W. 801; Brown v. Chicago & N. W. R. Co. 102 Wis. 137, 44 L. R. A. 579, 77 N. W. 748, 78 N. W. 777, and Vicksburg & M. R. Co. v. Phillips, 64 Miss. 693, 2 So. 537. The contrary view is quite as strongly presented in Legg v. Britton, 64 Vt. 652, 24 Atl. 1017 (overruling the Needham Case); Lubrano v. Atlantic Mills, 19 R. I. 129, 34 L. R. A. 797, 32 Atl. 205, and Chicago & E. I. R. Co. v. O'Connor, 119 Ill. 586, 9 N. E. 263, where it is held that concurrent suits cannot be maintained, as "the survival statute was only intended to apply when death resulted from some other cause than the injury," and that, in case death results from the wrongful act before the judgment, the death act, and not the survival act, must be relied on. Fellers v. Fellers, 54 Neb. 694, 74 N. W. 1078. The Kansas court (McCarthy v. Chicago, R. I. & P. R. Co. 18 Kan. 46, 26 Am. Rep. 742; Martin v. Missouri P. R. Co. 58 Kan. 475, 49 Pac. 605), and the Michigan court (Sweetland's Case, 117 Mich. 329, 43 L. R. A. 568, 75 N. W. 1066), are divided, so that we may fairly say the authorities are so evenly balanced on this point as to settle nothing, if it were necessary to rule as to the right to maintain concurrent suits.