After our former 'decision in this case (95 Neb. 175), argument was allowed on the measure of damages. Upon this question we have had the assistance, not only of the attorneys engaged in the case, bnt also of other able attorneys interested in similar cases pending in this and other courts. For this reason, and because of the importance of the question, and the inconsistent, or at least incomplete, provisions of the statute, we have thought it best to state further reasons for our conclusion. The facts are sufficiently stated in our former opinion.
When one is injured in his person by the wrongful act of another, and begins an action to recover damages so sustained, and afterwards dies while his action is pending, what are the elements of damage which can be recovered? Our former opinion holds that, when the “action is revived in the name of an administrator, the latter takes the decedent’s place in the litigation, and is entitled to recover for the benefit of the estate what the injured person would have been entitled to recover had he survived his injuries.” The opinion cites Webster v. City of Hastings, 59 Neb. 568, and other decisions of this court, which could not have been determined as they were unless this is the law. Sections 8022, 8023, Rev. St. 1913, are: “In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to real or personal estate, or for any deceit or fraud, shall also survive, and the action may be brought, notwith*483standing the death of the person entitled or liable to the same.” “No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, assault, or assault and battery, for a nuisance, or against a justice, of the peace for misconduct in office; which shall abate by the death of the defendant,” These are sections 463 and 464 of the 'Code as now numbered, and were enacted in 1858. Rev. St. 1866, p. 469. The latter section quoted provides that such an action as this shall not abate by the death of the plaintiff. This language is so direct and clear that it must be conceded that the administrator may continue the action. There seems to be no good reason in the nature of the case to forbid an -administrator to begin and prosecute an action and at the same time allow him to continue an action for the same cause begun by the deceased in his lifetime. It is the duty of the court to construe these statutes together. If the deceased had lived to complete his action, he would have recovered for all damage done him by defendant’s wrongful act, including the injury to his earning power during his expectancy of life. What he recovered would, of course, be directly for his own benefit, but it would become a part of his estate, and upon his death, occurring after the receipt of such remuneration, it would benefit his next of "kin and all others who would be interested in his estate. His wife and children are interested in his estate while he lives, and his creditors are interested in so much thereof as is necessary to satisfy their claims. The rights of wife and children in a specified and limited amount of his estate are superior to the rights of creditors. The husband and father cannot ignore the rights of his family nor of his creditors in his property. His relation in them is analogous to that of trustee. It would seem, therefore, that, if in his lifetime he recovered full compensation for his injuries, the liability of the wrongdoers would be extinguished.
The supreme court of South Dakota has, in a recent case, considered that there is a double liability; that their death act, which is essentially the same as ours, creates a *484new cause of action. This conclusion is earnestly contested by two of the judges in dissenting opinions. Rowe v. Richards, 151 N. W. (S, Dak.) 1001. We refer to this as one of the very recent cases, in which many authorities are collected and freely quoted. The majority opinion is largely devoted to a discussion of the difference between a “cause of action” and “a right of action,” and particularly between the “cause of the injury” and “the injury itself.” The opinion considers that the failure to observe this distinction has led to the view “that there could be but one recovery for one wrong — ‘one wrongful act.’ ” There would be much force in this suggestion if the cause of action were the wrongful act. As suggested in the opinion, if “A, in negligent disregard of the rights of others, fires a bullet from his rifle,” if the shot does no damage, there is no cause of action, but if it injures B and C, then each have a cause of action against A. B’s cause of action is not the wrongful act, but the injury it has done him. But under our death act the cause of action is not the wrongful act, but damage that act has caused. It has injured the earning capacity of the deceased. It is not for the death of the deceased that the widow sues. It is for her loss caused by the injury to her husband. That the injury caused the total destruction of his earning capacity and all benefits which she otherwise would have received from her husband is rendered certain by his death as the result of that injury. If one maliciously sets fire to a building in'which the property of A and B is stored, their loss is the destruction of their property, and not the “wrongful act.” If each owns a separate and distinct part of the property destroyed, each has a distinct cause of action. If the title to the property is in a trustee for their benefit, the trustee may recover the whole loss in one action, and payment of the full value of the property to the trustee would ordinarily satisfy the claims of both A and B. Under our statutes the wife has an interest in the property and rights of her husband at his decease, of which he cannot deprive her by any act of his. His creditors also have an interest which he cannot ignore. His admin*485istrator represents all of those interests. Therefore, there seems to be no reason why the whole matter could not be disposed of in one action. If the petition, in addition to the other allegations of damages, alleged the earning power of the deceased, and who were the dependents, and what each of them was entitled to recover under Lord Campbell’s Act, which is called by some courts the “death act,” and how much the estate of the deceased ought to recover, and if the verdict of the jury or findings of the court were equally specific, there would be no difficulty in administering the two sections of the statute together. We have alluded to the question actually decided in the South Dakota case, because, as the decision in that case shows, the question of the power of the party injured to collect full compensation, and so bar any future action, is so connected with the question in the case at bar that neither can be satisfactorily determined without reference to the other. The suggestion of a “double recovery” has injected itself into very many decisions. Of course, if a settlement with the party injured is affected with fraud or overreaching, it might be avoided, and, if the amount received was grossly inadequate to the injury suffered, that of itself would be evidence tending to show unfair practice.
By the ancient common law there could be no private action for the felonious killing of a human being. Such damages inhered in the felony and belonged to the crown. The courts in those times appear to have extended the principle so as to forbid an action for death caused by any wrongful act, whether felonious or otherwise. If the legislature had abolished this rule, and expressly provided for an action for damages caused by an unlawful act, whether death resulted or not, the difficulties of the situation would be removed. Judge Cooley says it is remarkable that the legislatures have not done so. “Why should not the money value of his life, when it has been taken away by unlawful act or negligence, be a right of action in the hands of his representatives?” 1 Cooley, Torts (3d ed.) p. 31 (*27).
Such a statute could give a preference to the widow or widower and next of kin as our statute does, and, when *486the entire damage sustained by all parties was recovered by the administrator, the proceeds in the hands of the administrator could be reported to the probate court as other assets to be distributed as the law required, or, perhaps still better, the statute might provide for the determination of the rights of the respective parties upon the trial in the district court, as suggested above.
It has been suggested that if the administrator should prosecute such an action for the benefit of the estate and also for the benefit of the next of kin — that is, making the claim under the survival statute and the claim under the death act in one action- — the administrator might be more zealous for the estate than for the widow and next of kin, and so the latter would be wronged. But no action can be brought under the death act for the widow and next of kin, except by the administrator; and, if there is danger of discrimination, the probate court can determine the rights of the respective parties in the recovery when the distinct court has failed to do so.
It would appear from the diversity of judicial decisions that there has been unfortunate and incomplete legislation in the other states as well as in our own. Construing these statutes in the light of history and of present conditions, we conclude that the intention of the legislature was that, when an action has been begun by the party injured to recover damages suffered because of the wrongful act of another, the action does not abate, nor any part thereof, by the death of plaintiff, and the administrator takes the place of the plaintiff therein and can recover any and all damages that the injured party could have recovered if he had survived, including injuries to or loss of his earning power.
We adhere to our former opinion.
Affirmed.