The judgment in this case is based upon the proposition that the cause of action given by the lawmaking body to the husband and surviving children is joint. This right of action can not be both joint and several. It can not be made, as it is by the statute, expressly joint, and then as to recovery permissively several, as made by the decision of the majority. The fundamental error in the majority view is that it is made both joint and several. It is conceded, as has several times been held, that all must sue; but the reasoning of the majority is that, despite this requirement, some may recover when others holding the right or cause of action jointly with them may be barred. It seems clear that the whole theory behind this reasoning was rejected by this court in Watson v. Thompson,185 Ga. 402 (supra). In that case the Court of Appeals sought instruction on the question whether the surviving children could maintain a suit "to recover for the alleged wrongful death of the mother," where the father had survived the mother for one day and during all this period was unconscious. The court in answer to the question held: "Where a mother and father are injured at the same time, and the mother dies first, and the father is rendered unconscious at the time of the injury and lives for one day without regaining consciousness, a suit can not be maintained after the death of the father by the children of the deceased father and mother against a tort-feasor to recover for the alleged wrongful death of the mother." The court further said: "It is the contention of counsel for the plaintiffs that the word `and not separately' should be construed to limit *Page 840 and further define the words `shall sue jointly;' and that the effect of adding the words `and not separately' was by the legislature merely intended to prevent a multiplicity of suits by requiring all the beneficiaries under this section who were living, and had a right of action, to join in one suit. Their argument in part is that the construction contended for is strengthened by the fact that the requirement of joinder goes only to the suit, there being no statement in the section, or in the corollary sections, which says that the right of action is joint or the beneficiaries are joint beneficiaries. This view was clearly presented in the brief and strongly argued at the bar." This argument was rejected by the court, and Thompson v. Ga.Ry. Power Co., 163 Ga. 598 (supra), was pointed to for authority. Hood v. Southern Ry. Co., 169 Ga. 158 (supra), was also pointed out as authority for the answer given to Court of Appeals. In 185 Ga. 403 (supra), it was said: "In [the Hood] case this court, after ruling that under § 4424 (§ 105-1306), upon the death of the mother leaving a husband and children, the husband and children have a joint action for the tortious homicide of the mother, and that the statute restricts the right to sue for such homicide to the husband and children jointly, and forbids separate actions, further held that if the husband lives after the tortious homicide of the mother, and dies before a joint action has been commenced, the children alone can not maintain an action instituted by the children, after the death of the husband, for the homicide of their mother. In that case two Justices dissented, but a re-examination of the issue there involved convinces us that the case was correctly decided." Then speaking of the fact that the husband remained unconscious during the brief interval he survived, the court stated: "It is the fact that he survived his wife that makes fatal the maintenance of the suit instituted after his death by his children alone. We know of no law that would justify us in holding that a state of unconsciousness is the equivalent of death. If, as we hold, the right of action was in the father and the children jointly, and not separately, then the moment the wife and mother died he, though unconscious, had with the children a right which was joint. In King v. Southern Railway Co., 126 Ga. 794 [55 S.E. 965, 8 L.R.A. (N.S.) 544], a mother brought suit for damages for permanent injuries to her daughter of fourteen years, who was injured when a buggy in which the child and her *Page 841 father were traveling was struck by a locomotive of the defendant. At the time of the injury to the daughter the cause of action arose in the father. He died within an hour after the occurrence. The court held that the cause of action did not survive to the mother of the child." Then, speaking of Mr. Justice Lumpkin's treatment of the King case, supra, said: "The learned Justice acknowledges the sternness of the rule he applies, but avers his impotency to change it. Says he: `It may seem to be somewhat of a hardship that an injured child may be left with the mother, upon the death of the father, and that she can not sue for the previous injury to it; and the shortness of the time during which the father lived may make this view more striking. But we can not change the law on account of sympathy. If the fact that the father lived for an hour only would create a cause of action in the mother which did not otherwise exist, how would it be if he had lived for six hours, or a day, or a week, or a year, or indeed for any time less than that in which the child would become of age? In any of these supposed cases the same argument, that the mother was left in possession of an injured child (supposing the injury to be permanent as alleged), would equally apply. The difference would be one only of degree, not of kind.'" Then, after calling attention that at common law no one could maintain a civil action for damages on account of wrongful death, and tracing the history of Lord Campbell's act passed in 1846, and our adoption and adaptation of kindred measures, the court said: "The statute here involved expressly declares that in the situation here presented `the husband and children shall sue jointly, and not separately.' It contains no exception as to the absence of the husband, refusal of the husband to join, sickness of the husband, or even the unconscious condition of the husband from the moment of the wife's injury until his own death; and we do not feel justified in reading any exception into the statute. Ita lex scripta est. Judge George, speaking for the Court of Appeals in Denham v. Texas Co.,19 Ga. App. 662, 667 (91 S.E. 1070), in denying the right of children to sue separately for the negligent homicide of the mother, when the father was alive and refused to join in the suit, the law giving the right of action to the husband and children jointly, said: `Our conclusion is influenced by the rule of strict construction always applied to the provisions of section 4424 [ § 105-1302 et seq.] of the present *Page 842 Code. The statute is in derogation of common law, and is strictly construed. It is not remedial and subject to liberal construction. The right to maintain a civil action for a negligent homicide has been restricted by the repeated decisions of the Supreme Court of this State to those persons expressly named or by necessary implication included in the terms of the statute. Moreover, it must be remembered that the right of civil action for a negligent death is founded upon the theory of compensation. The beneficial interest in the life of the deceased is the basis upon which the right of recovery exists.'"
In Hood v. Southern Ry. Co., supra, we find it stated, in reference to the statute involved: "The main purpose of the act of 1887 was to give the husband the right to recover jointly [italics supplied] with her children for the homicide of his wife," and it seems clear that it was in this sense that the court spoke when, as pointed out in the majority opinion in the present case, it was also said: "The only effect of this act, so far as children are concerned, is to lessen the amount which they could recover for the homicide of their mother, as under this act the full value of the life of the wife was to be shared by the husband and children jointly;" for it is further said, in reference to the language of this act, that it "will admit of no other construction than that the right of action given to thehusband and children of the mother was joint," citing and quoting from Thompson v. Ga. Ry. c. Co., supra.
In the well-considered case of Thompson v. Watson,186 Ga. 396 (supra), this court had under review, on certiorari from the Court of Appeals, the question whether there could be a recovery by four of five surviving children of a deceased father where his death had been "caused by the negligence" of the fifth child and her husband, and whether four of the five children only could recover against the joint tort-feasor, the husband of the fifth child. It was plainly held: "If a right or cause of action is given under the above statute to the `children' of a deceased father as against the husband of the fifth child, for the homicide of the father, caused by the joint negligence of the fifth child and her husband, such right or cause of action is joint and not several, and is given to all of the children or none of them; and in a suit against the husband of the fifth child, the failure to join the fifth child as a party plaintiff, *Page 843 solely on the ground that she is jointly liable with her husband, defeats the action."
In this dissent extended quotation will not be made from the splendid discussion of this topic, but reference is made to the opinion for its discussion, for the history of this and the kindred sections of the Code, and the many cases cited; and because of its strong reasoning, and a belief that it is applicable to the case under consideration, the following portion of the opinion in that case is presented: "Thus in construing the statute we must approach it, not with the idea that it is unjust or harsh if it fails to give a right of action in certain instances, but on the contrary that the harshness lies in the fact that it gives a right of action in any instance. This may seem contrary to a humanitarian point of view; but it has always been a rule of construction of statutes that those in derogation of the common law, that is those which give rights not had under the common law, and those penal in nature must be limited strictly to the meaning of the language employed, and not extended beyond the plain and explicit terms of the statute. The legislature is presumed to act with knowledge of this rule of construction, and with that body only lies the right and privilege to grant rights not given under the common law and to extend and broaden any rights so granted. Such is not the function of the courts. The statute in plain terms purports to give a right of action to all of the children of the deceased, minor or sui juris. This to our mind plainly evidences an intent to give a right of action for the homicide of the father only when death is caused by the tort of one other than a member of the class designated. Lord Campbell, the author of the first death statute of England from which our present statute evolved, said that his act was passed for purpose of `giving a compensation by action to the families of those killed by thenegligence of others .' 12 Camp. Lives Ld. Ch. 265. Our first statute purported to give a right of action in any case where the deceased could have maintained an action had he lived. So did Lord Campbell's act. Our present statute contains no such provision. Regardless of the effect of the absence of this provision in our present statute, the children of the deceased are named as those to whom the right to recover is given, and it is given to them as a class, and not as separate individuals. There is nothing in the language of our statute as it presently stands that would tend *Page 844 to show an intention on the part of the legislature to make any exception to that status. The right of action being expressly given to all excludes an intention on the part of the part of the legislature to give a right of action to a part of the children against the other, but on the contrary evidences an intention to give a right of action to the children for the death of the father only in cases where the death is caused by the tortious act of one other than the children."
That the General Assembly has so understood the construction which this court has up to now consistently put upon these acts seems clear when we notice that in 1939 (Ga. L. 1939, p. 233), the very Code section under consideration was amended, obviously in the light of the decision in Watson v. Thompson, 185 Ga. 402 (supra), rendered in 1938, so as to have the statute read, as it now does, as follows: "The husband and/or child or children may recover for the homicide of the wife or mother, and those surviving at the time the action is brought shall sue jointly and not separately, with the right to recover the full value of the life of the decedent, as shown by the evidence, and with the right of survivorship as to said suit, if either shall die pending the action." It will be noted that this amendment has the effect of enlarging the rights of the surviving children by protecting against the contingency which barred them in Watson v. Thompson, supra, but does nothing whatever to relieve against the situation which in Thompson v. Watson, 186 Ga. 396, barred the right of less than all the surviving children, and held that all or none had vested in them the cause of action. This decision was also rendered in 1938, and we must assume that the General Assembly did not intend to work any change in this important matter, but acquiesced in such construction.
Again, it seems to me perfectly clear that if failure either by choice or by providence to join in the suit by one sharing the right jointly with the others will bar a claim, it ought to follow that when his negligence as a matter of law bars him from his joint right of recovery, all are likewise barred. If he can destroy the joint right of action by choice, he can do so by his guilty negligence. To say that a joint tort-feasor more guilty than his partner in negligence must join as coplaintiff with those not guilty in a suit against the joint tort-feasor is to cause their case to fall with his, just as it falls with his failure or refusal to sue. It seems unnecessary to discuss the other questions. *Page 845