provides that the husband's suit, in the Has the defendant violated any of the pubevent of his death, shall survive to his legal lic or private obligations he was under to representative, says nothing at all in refer- the deceased? Whether those obligations or ence to the right of the widow to bring a duties were implied by law or existed by exsuit in the event he dies. If the pendency press contract is immaterial, but that some of a suit by the legal representatives for the duty, public or private, was violated by the injury to the deceased could not be pleaded homicide, would seem to follow from the very in abatement of the suit of the widow for the nature of a wrong, and from the principles homicide of her husband, I am at a loss to of justice and equity. And our original act understand how it could be contended that giving this action puts the right precisely on the judgment in favor of the deceased during this ground, to wit, whenever the husband, his lifetime could be so pleaded; and for a had he lived, would have had a right of acsimilar reason it would seem that an accord tion, then the wife has it in case of his and satisfaction entered into between the de- death." In the case of Hendricks v. Western ceased and the wrongdoer during his life- & A. R. Co. 52 Ga. 467, it was held that, in time would not be a bar to the suit by the an action by a widow against a railroad comwidow after his death. I can arrive at no pany for the homicide of her husband, all other conclusion than that it was the inten- the facts and circumstances connected with tion of the general assembly to provide for the killing, or any relation existing by conthe two causes of action when a person was tract or by law between the deceased and the negligently injured, and death did not im- defendant which would bar a recovery by mediately, but did finally, result from the in-him for damages in case he had lived, apply jury received; that is, the one which the per- to and govern the right of the wife. A simson injured would have under the common ilar ruling was made in the case of Atlantic law, and the other one which the widow & R. Air-Line R. Co. v. Ayers, 53 Ga. 12. or other person named in the statute would have under the Code of 1863 as amended by the act of 1887. I have been unable to find any ruling by this court which would be either directly controlling upon this question, or which would have such a bearing upon the same as would be recognized as persuasive authority either way. It is proper, however, in this discussion, to allude to the rulings and utterances of the court in some of the cases which have been brought under the different statutes above referred to. So far as I have been able to ascertain, the only case brought under the act of 1850 which ever reached this court was the case of South-Western R. Co. v. Paulk, 24 Ga. 356. No ruling was made in that case which would have any bearing upon the question now under consideration. No case brought under the act of 1856 seems ever to have reached this court. The first time that this court was called upon to deal with the law as contained in the Code of 1863 was in 1868, after the Code of that year went into effect. This was in the case of Macon & W. R. Co. v. Johnson, 38 Ga. 409, where it was held that, if the deceased by the exercise of ordinary diligence could have avoided the injury, his widow could not recover damages, and also that, if both the deceased and the wrongdoer were at fault, the damages would be diminished in proportion to the negligence or want of ordinary care on the part of the deceased. It is to be noted that this decision was prior to the act which declared that the measure of damages should be the full value of the life of the deceased. In the case of Western & A. R. Co. v. Strong, 52 Ga. 461, Judge McCay uses this language: "But by our law the right is given by statute to the wife generally for the homicide' of her husband. Cases of self-defense, of inevitable accident, of execution by command of the law, etc., must, from the nature of things, be excepted. And it seems to us that the true inquiry is, In the case of Cottingham v. Weeks, 54 Ga. 275, it was ruled that the fact the defendant had been tried upon an indictment charging him with the offense of murder and had been acquitted could not be pleaded in bar of the widow's suit for the homicide. When the case came before this court a second time, in 56 Ga. 201, it was held that a widow could recover for the homicide of her husband, whether the homicide be the act of a natural or artificial person, or the result of intention or criminal negligence. The ruling in the Hendricks Case, 52 Ga. 467. was followed and approved in the case of Southwestern R. Co. v. Johnson, 60 Ga. 667. In the case of Central R. & Bkg. Co. v. Roach, 64 Ga. 635, it was held that a suit by a widow against a railroad company for the homicide of her husband, who was an employee of the road, could not be maintained unless it was shown that, in the transaction resulting in the death of the employee he was free from fault. In Daly v. Stoddard, 66 Ga. 145, it was held that, in order to authorize a recovery by a widow for the homicide of her husband, his death must have been caused by some act amounting to a crime, or by the criminal negligence of the defendants. This case was decided before the passage of the act of 1887. In Cook v. Western & A. R. Co. 72 Ga. 48, it was held that a contract entered into by a husband who was an employee of the company, which waived the right to sue for injuries resulting from criminal negligence on its part, was void, and could not be pleaded in bar of the widow's right to recover. In Berry v. Northwestern R. Co. 72 Ga. 137, it was held that a widow had a right of action for the homicide of her husband whenever the husband, had he lived, would have had such right, and that whatever could have been a good defense to his suit would be equally available against one brought by the widow. An examination of that case, however, will show that the defense relied on was that the deceased could, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence. In Central R. & Bkg. Co. v. Brantley, 93 Ga. 259, 20 S. E. 98, the rule that a widow of an employee of a railroad company could not recover against the company for the homicide of her husband if the husband was at fault, or if he could have avoided the consequences of the defendant's negligence by the exercise of ordinary care and diligence, was recognized. In Georgia R. & Bkg. Co. v. Fitzgerald it was held that an admission by a person tending to show that an injury which he had received, and which subsequently resulted in his death, was caused by accident, and not by the negligence of the company, was admissible in evidence in a suit brought by the widow to recover for the homicide. See also, in this connection, Central R. Co. v. Roach, 70 Ga. 434; Savannah, F. & W. R. Co. v. Stewart, 71 Ga. 427. It clearly appears from the present law of the state governing rights of action of the character involved in the present case, as well as from the decisions of this court above referred to, that a widow or other person named in the statute is not entitled to recover unless the homicide is brought about as a result of a crime, or criminal or other negligence of the party occasioning it, and that no recovery can be had for the homicide if the negligence of the deceased was of such a character as would have precluded a recov ery by him, or if during his life he had done any act or entered into any contract which would have the effect of rendering the act which brought about his death one which was either lawful in the person committing the same, or one for which he would not be legally responsible. In other words, the right of a widow to recover is not because the death of her husband has been brought about by an 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 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 wrongful act and his death can defeat the cause of action for the homicide. The Fitzgerald Case, 108 Ga. 507, 49 L. R. A. 175, 34 S. E. 316, is apparently in conflict with this proposition, but not, I think, really so. The proposition above stated presupposes a wrongful act resulting in the death of the person wronged. In the Fitzgerald Case, evidence of an admission of the party injured was allowed, to show that no wrongful act had been committed by the defendant, but that the act complained of, as to the person injured, was lawful. Hence it tended to establish that no wrongful act was committed, and therefore no cause of action arose in favor of anybody. For the purpose of admitting such evidence, the deceased and the widow might be considered in privity. But, even if this is not true, the admission of the evidence in the Fitzgerald Case was predicated upon another principle; and that is that a declaration against interest by a person since deceased, under well-established principles, as recognized by the authorities there cited, is admissible in a controversy between third persons. It would seem that the ruling made in that case was better supported by the latter reason than by the former. In the case of Western & A. R. Co. v. Bass, 104 Ga. 390, 30 S. E. 874, this court had before it the question as to when the statute of limitations began to run against the widow's right of action to recover for the homicide of her husband. It was held that, as such right did not exist until he was dead, the statute of limitations began to run from his death, and not from the time that the injury was inflicted which caused his death. In the negligent, and under such circumstances opinion Mr. Justice Fish uses this language: that, had death not resulted, he would have "The plaintiff's action, however, was not for been entitled to demand compensation. It is injuries done to the person of her husband. therefore clearly right that the widow should She had no right under the law to sue for be deprived of her right to bring a suit if such injuries. No one except the husband the deceased could have avoided the conse- himself could maintain an action for them. quences of the defendant's negligence by If, however, such injuries resulted in his the exercise of ordinary care, as well death, then, under § 3828 of the Civil Code, a as in the case where the deceased had right of action accrued to her. That section entered into a contract which had the provides that a widow may recover for the effect of making the act of the defendant law- homicide of her husband, and plaintiff's suit ful as to him, and also in all of those cases is based upon the cause of action therein where the facts and circumstances surround-given her. This statute does not profess to ing the killing, as well as those leading up to and preceding it, were such as to show 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 revive the cause of action for the injury to the deceased in favor of his widow, nor is such its legal effect; but it creates a new cause of action, in favor of the widow, unknown to the common law. The right of action given by the statute is for the homicide of the husband, in all cases where the death results from a crime, or from criminal or other negligence, and is founded on a new grievance,-namely, his homicide, and is for the injury thereby sustained by the widow and children, to whose exclusive benefit the damages must inure." While the question | it is an entirely new cause of action which is now under consideration was not directly involved in that case, the argument made by Mr. Justice Fish in demonstrating the correctness of the conclusion as to the question then before him directly bears upon the present question, even if it is not conclusive of the same. ent case. 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 Cases arising under statutes similar to ours of the executor or administrator. The comhave been before the courts of last resort in pensation for the bodily injuries remains exdifferent states of the Union and of England, tinct, but a new grievance of a distinct naand, while the decisions are not altogether ture, namely, the deprivation suffered by the in accord, some of them are authority for the wife and children or other relatives of their conclusion which I have reached in the pres- natural support and protection arises upon Those holding the contrary are his death, and is made by the statute the subbased on statutes more nearly similar to ject of a new cause of action in favor of these Lord Campbell's act, and it may be con- surviving relatives, but to be prosecuted in ceded for the sake of the argument, that the point of form by the executor or administracases which hold that and similar statutes tor. The reference in the first section of the to be survival statutes were correctly de- statute of 1847 to the ability of the deceased cided. See, in this connection, Tiffany, to maintain the action if death had not enDeath by Wrongful Act, § 24. This, however, sued is inserted solely for the purpose of dedid not seem to be the opinion of the author fining the kind and degree of delinquency of that act, as is shown by the above-quoted with which the defendant must be chargeable extracts from his Lives of the Lord Chancel-in order to subject him to the action. The act, lors. In the case of Needham v. Grand neglect, or default must be such as would, Trunk R. Co. 38 Vt. 294, it was held that, if death had not ensued, have entitled the under statutes which are very similar to party injured to maintain an action," etc. ours, two causes of action arose out of the The supreme court of Arkansas held, under wrongful death of another,-one in favor of statutes similar to ours, that two causes of the decedent, for his loss and suffering re-action could be maintained for the wrongful sulting from the injury in his lifetime; the other founded on his death, or on the damages resulting from his death to the widow or next of kin of the deceased,-and that each cause of action was to be prosecuted independently of the other; the damages allowed to be recovered in the two statutes being given upon entirely different principles, and for different purposes. Under statutes of a similar nature the supreme court of Mississippi held that a right of action in the administrator to prosecute a suit for personal injuries begun during the lifetime of his intestate was distinct from and independent of the right of action given by statute to the next of kin to recover for the death of the person, caused by the wrongful or negligent act of another; that the two sections could coexist; and that they had no connection with each other. Vicksburg & M. R. Co. v. Phillips, 64 Miss. 693, 2 So. 537. The court of appeals of New York held that a statute very similar to Lord Campbell's act was not simply remedial, but created a new cause of action in favor of the personal representative of the deceased which was wholly distinct from, and not a revivor of, the cause of action which, if he had survived, he would have had for his bodily injury. Whitford v. Panama R. Co. 23 N. Y. 465. Judge Denio in his opinion uses this language: "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, which may always be regulated by the lex fori, is not, in my opinion, sound; for it is not a simple devolution of a cause of action which the deceased would have had which the statute effects, but death of an individual,-one for the benefit he lived, against the latter for an injury for The following decisions, while not directly in point, in their reasoning tend to support the conclusion I have reached in the present case: Jeffersonville R. Co. v. Swayne, 26 Ind. 477, 484; Mancy v. Chicago, B. & Q. R. Co. 49 Ill. App. 105; Illinois C. R. Co. v. Cozby, 69 Ill. App. 256; Chicago, B. & Q. R. Co. v. Wymore, 40 Neb. 645, 58 N. W. 1120; The Oregon, 73 Fed. Rep. 846; Com. v. Metropolitan R. Co. 107 Mass. 236; Pittsburgh, C. C. & St. L. R. Co. v. Hosea, 152 Ind. 412, 53 N. E. 419; Louisville, E. & St. L. R. Co. v. Clarke, 152 U. S. 230, 38 L. ed. 422, 14 Sup. Ct. Rep. 579; Martin v. Baltimore & O. R. Co. 151 U. S. 695, 38 L. ed. 319, 14 Sup. Ct. Rep. 533 et seq; Doyle v. Fitchburg R. Co. 162 Mass. 66, 25 L. R. A. 157, 37 N. E. 770; Donahue v. Drexler, 82 Ky. 157, 56 Am. Rep. 886; Hurst v. Detroit City R. Co. 84 Mich. 539, 48 N. W. 44; Westcott v. Central Vermont R. Co. 61 Vt. 438, 17 Atl. 745; International & G. N. R. Co. v. Kuehn, 70 Tex. 582, 8 S. W. 484; Munro v. Pacific Coast Dredging & Reclamation Co. 84 Cal. 515, 24 Pac. 303; Putman v. Southern P. Co. 21 Or. 230, 27 Pac. 1033; Belding v. Black Hills & Ft. P. R. Co. 3 S. D. 369, 53 N. W. 750. It has been ruled in England that the cause of action under Lord Campbell's act was the defendant's negligence, and that, if the deceased had in his lifetime accepted a sum of money in full satisfaction and discharge of his claim against the defendant, this would bar the right of the legal representative to recover for the homicide, the death of the person injured not creating “a fresh cause of action." Read v. Great Eastern R. Co. L. R. 3 Q. B. 555, 9 Best & S. 714. See also Griffiths v. Dudley, L. R. 9 Q. B. Div. 357; Haigh v. Royal Mail Steam Packet Co. 52 L. J. Q. B. N. S. 640; Wood v. Gray [1892] A. C. 576. The decisions, however, in England, even under Lord Campbell's act, have not been uniform. In Bradshaw v. Lancashire & Y. R. Co. L. R. 10 C. P. 189, it was held that where a person was injured on a railway by an accident, and after an interval died, his executor might maintain an action for damage to his personal estate arising in his lifetime from medical expenses and loss occasioned by his inability to attend to business. In making the decision the court found it necessary to construe Lord Campbell's act, and in reference thereto Grove, J., uses this language: "The intention of the act was to give the personal representative a right to recover compensation as a trustee for children or other relatives left in a worse pecuniary position by reason of the injured person's death, not to affect any existing right belonging to the personal estate in general. There is no reason why the statute should interfere with any right of action an executor would have had at common law. In the case of such right of action he sues as legal owner of the general personal estate which has descended to him in course of law. Under the act he sues as trustee, in respect of a different right altogether on behalf of particular persons designated in the act.” The decision in the Bradshaw Case was questioned but followed in Leggott v. Great Northern R. Co. L. R. 1 Q. B. Div. 599, 45 L. J. Q. B. N. S. 557. In that case suit was brought by the widow, as the personal rep resentative of the estate of the deceased, to | bell's act, and one passed in 1872 which prorecover for the expense incurred by the lat- vided that actions to recover damages for ter in consequence of the injury, and for loss injuries to the person, except slander and by reason of inability to attend to business, libel, should survive, it was held that the act etc.; and it was held that the recovery by of 1872 did not repeal the act of 1853, but the plaintiff in a former suit, brought in her that the former act simply referred to cases representative capacity, for the benefit of where the death was not the result of the herself and children, to recover for the homi- wrongful act complained of in a pending cide of the deceased, did not abate the ac- case. Holton v. Daly, 106 Ill. 131. The sution. In that case it was contended that an preme court of Kentucky held that under admission made in the former suit by the statutes of that state two causes of action-plaintiff operated as an estoppel in the lat- one for the mental and bodily suffering of ter, but the court were agreed that this con- the person injured, and the other for the loss tention could not be maintained, while they of life-did not survive, when the suffering doubted whether a proper construction of and death were caused by the same wrongLord Campbell's act authorized the bringing ful act, and that the party entitled to sue of a second action at all. See also, in this must elect whether he would bring the one connection, Pym v. Great Northern R. Co. or the other, and that the pendency of one 2 Best & S. 759. In Walkerton v. Erdman, action was a sufficient reason for the abate23 Can. S. C. 352 it was held that where an ment of the other. Conner v. Paul, 12 Bush, action was brought by a person injured, in 144. In 8 Am. & Eng. Enc. Law, 2d ed. p. 870, which his evidence was taken de benc esse, the rule is stated by which it can be detersuch evidence was admissible in a subsequent mined whether the statutes authorize two acaction brought under Lord Campbell's act. tions, one by the legal representative for From this proposition two judges dissented, the benefit of the estate of the decedent, and but the court was of opinion that the the other by the widow or next of kin.-or principle of the decision in Read v. Great only one action, which may be commenced by Eastern R. Co. L. R. 3 Q. B. 555, 9 Best & S. the person injured in his lifetime and survive 714, was controlling. The construction of to his legal representatives, or be comLord Campbell's act made in the decision menced by them after his death, in the follast cited has been followed by the courts in lowing language: "When the right of acmany of the states of the Union where the tion given by the statute is merely such as statutes on the subject are in the same or the deceased would have had if he had sursimilar language as that contained in that vived the injury a release properly executed act. See Littlewood v. New York, 89 N. Y. by him in his lifetime is a complete defense 24, 27, 42 Am. Rep. 271; Dibble v. New York to an action by his personal representative & E. R. Co. 25 Barb. 183; Hecht v. Ohio & or others to recover damages for his death. M. R. Co. 132 Ind. 507, 32 N. E. 302; Good- The same rule is true where the statute is sell v. Hartford & N. H. R. Co. 33 Conn. 51; not a survival statute, but creates a new Price v. Richmond & D. R. Co. 33 S. C. 556, and distinct cause of action in favor of cer12 S. E. 413; Birch v. Pittsburg, C. C. & St. tain beneficiaries, if it provides that the L. R. Co. 165 Pa. 339, 30 Atl. 826; Sawyer v. right of action shall exist only in cases where Perry, 88 Me. 42, 33 Atl. 660; San Antonio the deceased himself might have maintained & A. P. R. Co. v. Long, 87 Tex. 148, 24 L. R. the action had he lived." Applying this rule A. 637, 27 S. W. 113; Louisville & N. R. Co. to our statute, what is the result? It is v. McElwain (Ky.) 34 L. R. A. 788, and clear that the right of action given to the notes; Hill v. Pennsylvania R. Co. 178 Pa. widow or other person therein named is not 223, 35 L. R. A. 196, 35 Atl. 997; Hansford merely such as the deceased would have had v. Payne, 11 Bush, 380; Fowlkes v. Nash- if he had survived the injury, for the simple ville & D. R. Co. 9 Heisk. 829; Taylor's Es- reason that this right of action, by the terms tate, 179 Pa. 254, 36 Atl. 230; Andrews v. of the act of 1889, survives to the personal Hartford & N. H. R. Co. 34 Conn. 57. In representative of the deceased. Neither is this connection, see 1 Jaggard, Torts, p. 310; the statute a survival statute. The personTiffany, Death by Wrongful Act, § 124; al representative of the deceased has no conCooley, Torts, *264. nection with the cause of action or with the In Legg v. Britton, 64 Vt. 652, 24 Atl. suit, and is not mentioned in any way in the 1016, the supreme court of Vermont held that statute. The statute creates a new and diswhere the plaintiff in an action for personal tinct cause of action, as has been ruled in injuries died from such injuries pending the case of Western & A. R. Co. v. Bass, 104 the action, and his administrator recovered Ga. 390, 30 S. E. 874, and it is not distinctly judgment therein, such a judgment was a provided that the right of action shall exist bar to an action by the administrator for only where the deceased himself might have the benefit of the widow or next of kin un- maintained the action had he lived. If the der the statute of that state. This decision act of 1850 were still of force, with the lanis directly in conflict with the decision guage in it, which is similar to the language made in the case of Needham v. Grand in Lord Campbell's act, then the ruling made Trunk R. Co. 38 Vt. 294, and Ross, Ch. J., in by the court of Queen's bench in Read v. the opinion, says that what is said on the Great Eastern R. Co., which has been folsubject in the Needham Case is obiter. In lowed by so many American courts in conIllinois, where there was a statute passed instruing similar statutes, might be looked to 1853 very similar in language to Lord Camp- as persuasive authority in determining what |