I am unable to concur in the holding of the majority on the principal question involved. *Page 597
The question of the force and effect to be given to Chapter 2, Article 7, Section 8, Acts of the Legislature, 1945, is the controlling one. I assume that no one will deny that this statute is in derogation of the common law, on the subject with which it deals, and, therefore, we must apply to it the rule of strict construction.
In my opinion, the Act of 1945 does two things: (1) It provides the rule to be followed in cases of injury resulting in death, either before or after the institution of an action based on such injury; and (2) the rule governing cases where a person has been injured, sues to recover therefor, and, during the pendency of his action, dies from causes other than the injury for which he had instituted his action.
The first situation is fully and plainly covered by the statute. It provides "where an action is brought by a person injured for damage caused by the wrongful act, neglect or default of any person or corporation, and the person injured dies pending the action, the action shall not abate by reason of his death but, his death being suggested, it may be revived in the name of his personal representative, and the declaration and other pleadings shall be amended so as to conform to an action under sections five and six of this article, and the case proceeded with as if the action had been brought under said sections".
Sections five and six referred to, Code, 55-7-5, 6, cover actions for wrongful death, and it seems to me clear that what was intended by the 1945 Act was to provide for revival of actions for wrongful death, covered by said sections, and that only.
The second situation is, in my opinion, also governed by the statute which reads: "And any right of action which may hereafter accrue by reason of any injury done to the person of another, and not resulting in death, by the wrongful act, neglect or default of any person, shall survive the death of the wrongdoer and may be enforced against his executor or administrator, either by reviving against such personal representative a suit which may *Page 598 have been brought against the wrongdoer himself in his lifetime, or by bringing an original suit against his personal representative after his death, whether or not the death of the wrongdoer occurred before or after the death of the injured party."
The statute plainly separates the two situations. In the first, the action may be revived in the name of the injured party against the personal representative of the wrongdoer; and, likewise, revived in the name of the personal representative of the injured party against the wrongdoer or his personal representative. There can be no question on this point.
But when we come to the second situation, we find a limitation on the right of revival. All we have to do is to read the statute. It plainly provides that an action "shall survive the death of the wrongdoer". It does not provide that it shall survive the death of the injured person, and leaves in full force and effect the common law rule under which, in such a case, the action would abate. When we say that this statute should be construed to mean that an action may be revived in the name of the personal representative of an injured person, who dies from other causes, we merely make law, and, in so doing, invade the province of the Legislature.
Able counsel for the plaintiff in error do not even contend that the statute, in plain terms, provides for the revival of an action by the personal representative of the injured party, in cases where death results from causes other than that for which the action was instituted. Their contention is based upon the language occurring near the end of the section, "or by bringing an original suit against his personal representative after his death whether or not the death of the wrongdoer occurred before or after the death of the injured party". Admittedly, this language throws doubt on the question, but we think the main provision of the statute, limiting the right of revival, as indicated above, should govern.
The first half of the 1945 Act is complete in itself; so is *Page 599 the second half. They relate to separate and distinct situations, one, where the death results from the injury; the other where an injured person dies from other causes. The Legislature has plainly made a distinction. The majority opinion says that it did not mean to do so, and we make the law to conform to our idea of what the Legislature possibly intended to do. I do not think we should assume such a power. It conflicts with my conception of the mutual obligation which should be recognized in dealing with the functions of the several departments of our State government.
I concur in the majority opinion that the title of the 1945 Act is sufficient.