dissenting.
I am-unable to concur in either the original opinion by Judge Rose or the present opinion by Judge Sedgwick, affirming the judgment of the district court. '
*487By the majority opinion the administrator of the estate of Miller is allowed to recover, not only for the pain and mental suffering actually sustained by his decedent, the physical injury suffered by him, the expense incurred for necessary medical and surgical attention in treating him for his injuries, but, in addition thereto, such sum as decedent would have earned for the whole term of his life expectancy, as shown by the Carlisle table, if he had not died as a result of his injuries. As to this last item of the recovery, I am convinced that the majority of the court is wrong.
By the act of February 25, 1873 (Gen. St. 1873, ch. 15) it was provided: “Section 1. That whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person, company or corporation, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then, and in every such case, the person who, or company, or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.
“Section 2. That every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action, shall be for the exclusive benefit of the widow and next of Mn of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property- left by persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries, resulting from such death, to the wife and next of kin of such deceased person, not exceeding the sum of five thousand dollars: Provided, that every such action shall be commenced within two years after the death of such person.”
*488Prior to the passage of that act, there was no statutory right for any one to recover for death by wrongful act; and whatever right accrued to the administrator of the deceased person, or those dependent upon him for support, was that which existed at the common law. By the act above quoted, a new right of action was created, and the widow and next of kin of the deceased were allowed to recover a sum not exceeding $5,000 for the pecuniary injuries resulting to them by reason of death caused by wrongful act. That statute has remained unchanged to the present time, except by an amendment including the widower, and the repeal of so much thereof as limited the amount of the recovery to the sum of $5,000.
It appears that the statutes of this state have made no direct provision for a recovery by the administrator of the estate of one who is killed by wrongful act, of any amount whatever representing the earning capacity of a deceased person after his death, except such recovery as may be had for the benefit of the widow or widower and next of kin of his decedent. Plaintiff decedent, Miller, in the case at bar, left no widow or next of kin, and no one dependent in any manner upon him for support. Therefore, the plaintiff in this case could not recover anything representing the earning capacity of decedent after his death occurred. The right of recovery, so far as that matter was concerned, was extinguished at Miller’s death. I am satisfied from a thorough investigation that no case can be found which holds that the loss of earning capacity can be recovered for the benefit of creditors of the decedent.
It is true that under the revivor statute the action commenced by Miller in his lifetime was properly revived, and it seems clear from the weight of authority that the administrator could recover for the benefit of the estate of his decedent for the pain and suffering, both mental and physical, and decedent’s loss of wages during the time he survived his injuries, for the necessary hospital charges, and for the value of the medical treatment furnished him by his physician; but the statutes have not made any provision for a recovery for decedent’s earning capacity, ex*489cepting such as provided for the benefit of the widow and next of kin, above mentioned.
In Dwyer v. Chicago, St. P. & O. R. Co., 84 Ia. 479, 35 Am. St. Rep. 322, it was said: “The statutes deal with the 'cause of action,’ and not with the rule of damage to be applied. In fixing the damage, we look to the wrong to be remedied, to the injury to be repaired.”
In Brown v. Chicago & N. W. R. Co., 102 Wis. 137, the court said: “Such damages to the widow and next of kin begin where the damages of the intestate ended, viz., with his death.” And on rehearing (p. 150) : “ 'The death is the end of the period of recovery in one case and the beginning in the other. In one case the administrator sues as legal representative of the estate for what belonged to the deceased, in the other he acts as trustee for those upon whom the act confers the right of recovery for the pecuniary loss inflicted upon them.’ * * * The damages in one right are limited to the loss which accrues to the injured person before death, and the damages in the other to the pecuniary loss of surviving relatives, as before the survival statute. The two rights in no way overlap each other.” See Johnson v. City of Eau Claire, 149 Wis. 194.
In Jacobs v. Glucose Sugar Repaving Co., 140 Fed. 766, it was said: “And if this be so, then by what logic or reasoning can it be said that two actions cannot be brought against one wrongdoer, the one for pain and suffering, and the other for damages to the estate? Both are actions for compensatory damages. The one survives to the administrator under one statute, and the other is given to the administrator under another.”
In Quinn v. Johnson Forge Co., 9 Houst. (Del.) 338, the court instructed the jury as follows: “Should you decide in favor of the plaintiff, you should assess damages in such reasonable sum as you deem proper and right under the circumstances, and in fixing that amount you should consider such damages as have been actually proved by reason of loss of wages from the 20th day of July, 1891, up' to March 3, 1892, when he died, and also allow such sum as you deem adequate and proper by reason of his *490physical pain and mental sufferings. As regards the death of Peace as being the result of his injuries, you cannot take that into consideration in the estimation of damages. It has no connection with this case.”
In Belding v. Black Hills & Ft. P. R. Co., 3 S. Dak. 369, 375, we find the following: “In what manner, and under what circumstances could the deceased have recovered had death not ensued? He could have recovered, in addition to his physical and mental suffering, for loss of time and employment, the expenses of medical and surgical attendance, nursing, etc., incident to the injury. * * * Anything more? 'Certainly not.” Pages 380, 381: “It does not provide, as we have seen, for the recovery of damages by the widow and heirs, and it is not provided that the personal representative shall institute the action for the use or benefit of such widow and heirs, or that the sum-recovered shall be apportioned between the beneficiaries. The section (Lord Campbell’s Act) seems to have- been adopted with another-object in -view, and that was to give the widow, having in the death of a husband sustained the greater loss, the prior right to institute the action and recover the damages she has sustained by reason of the death of her husband. * * * To carry into effect the evident intention of the legislature, the widow should have the prior and exclusive right to institute the action and to the damages for the loss of the life of the husband. * * * If the action can be instituted by the personal representative, the damages recovered by him would be assets of the estate, and, in case the estate was insolvent-, the money recovered would go to the creditors. This could not have been the intention of the legislature. * * * This seems but reasonable and just. All must concede, we think, that the wife, in the loss of her husband, on whom she is dependent for support, sustains a greater loss by such death than any other person.”
The same rule is announced in Atchison, T. & S. F. R. Co. v. Rowe, 56 Kan. 411; Pittsburgh, C., C. & St. L. R. Co. v. Hosea, 152. Ind. 412; Peake v. Baltimore & O. R. Co., 26 Fed. 495; Louisville, N. A. & C. R. Co. v. Goody*491koontz, 119 Ind. 111; Hilliker v. Citizens Street R. Co., 152 Ind. 86; Sturges v. Sturges, 126 Ky. 80, 12 L. R. A. n. s. 1014; Stewart v. United Electric Light & Power Co., 104 Md. 832, 8 L. R. A. n. s. 384; Davis v. Railway Co., 53 Ark. 117, 7 L. R. A. 283; Michigan C. R. Co. v. Vreeland, 227 U. S. 59.
The case of Mageau v. Great Northern R. Co., 103 Minn. 290,15 L. R. A. n. s. 512, is to the same effect. The court said in that case: . “The administrator recovers damages based upon the reasonable expectation of pecuniary benefit of the persons named by the statute, often not the husband, as the beneficiaries of the action.”
In this state, however, the husband is included as one who may recover for the pecuniary injuries sustained by death by wrongful act. The authorities are almost numberless on this question. To summarize the whole matter, I have found by my investigation that the courts of fourteen of our sister states, the federal courts and the English cases support the rule announced in this dissenting opinion. The courts of five of the states refuse to allow any damages, stating that the action abates. The courts of last resort in eleven of the states permit a division of the damages, a part to the estate and a part to the widow and next of kin; while the courts of but four states support the rule stated in the majority opinion. I am therefore constrained to hold that the widow and next of kin are entitled to recover the damages allowed them by Lord. Campbell’s Act, in an action brought by an administrator of their own choice, without being compelled to resort to the probate or county court for a distribution. Their recovery should be for their benefit alone. The provisions of the statutes have been in force since 1873, and no difficulty has been encountered in enforcing them. They are plain, and are sufficiently explicit to cover all cases without resort to speculation or judicial legislation. It is my opinion that the judgment of the district court should be reversed and the cause remanded for further proceedings.
Fawcett and Hamer, JJ., concur in the above dissent.