The opinion of the court was delivered by
Mr. JUSTICE McTver.This was an action brought by the plaintiff, as administratrix of Philip H. Price, deceased, to recover compensation in damages for the killing of her intestate by the alleged fault of the defendant company, under the provisions of the act of 1859, now incorporated in the General Statutes as sections 2188-2186. The defendant, after denying all allegations of negligence, for a further defence, alleged that after the time of the alleged injury, and before the commencement- of this action, the said intestate, for a valuable consideration, executed a paper, acknowledging full satisfaction for all damages resulting from the alleged injury, and releasing and discharging the defendant company from all liability therefor. After the plaintiff had closed her testimony, the defendant moved for a non-suit, upon the ground that there was no evidence of any negligence on the part of the defendant company, which motion was refused. The defendant then offered evidence for the purpose of showing that the deceased was injuried by reason of his own negligence, and not through any want of care on the part of the.defendant company ; and also proposed to introduce the release executed by deceased prior to his death, set up as one of defences in the answer, which, upon objection from the plaintiff, was ruled to be inadmissible. There were also other questions raised as to the admissibility of testimony which, under the view we take of the effect of the release, need not be specifically mentioned.
The jury having rendered a verdict in favor of the plaintiff, the defendant appeals upon the several grounds set out in the record, which need not be repeated here, as we think the leading *560and-controlling question in the case is as to the admissibility and effect of the release above mentioned. The undisputed facts are that plaintiff’s intestate received the injury complained of on the 18th of February, 1887, from the effects of which he died on the day of November, 1887 ; and that in the meantime, to wit, on the 8th of August, 1887, the intestate executed the release in question. So the practical inquiry in this case is, whether an action of this kind can be maintained under our statute, where the party injured has, prior to his death, released his right of action.
The two sections upon which, in our judgment, this question turns, read as follows :
“Sec. 2183. Whenever the death of a person shall be caused by the wrongful act, neglect, or default of another, 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 case, the person or corporation who would have been liable, if death had not ensued, shall be liable to an action for damages, notwith: standing the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony.”
“Sec. 2186. The provisions of the three preceding sections of this chapter shall not apply to any case where the person injured has, for such injury, brought action which has proceeded to trial and final judgment before his or her death.”
It seems to us that, by the terms of section 2183, the capacity of the deceased to maintain an action, based upon the injury which caused his death, is made the test of the right of the administrator to maintain the action provided for by the statute. Hence if the deceased has debarred himself by his contributory negligence, or by any other cause, from maintaining his action, based upon the injury which caused his death, it follows, necessarily, that his administrator is likewise barred of his right of action, which would otherwise be secured to him by the statute. In all cases like the-present, the controlling question, therefore, is whether the deceased, if he had not died, could have maintained the action. It seems to us clear, therefore, that the Circuit Judge erred in refus*561ing to receive in evidence the release offered by the defendant; for it cannot be doubted that if the deceased had not died, and such 'release had been pleaded and proved in an action instituted by him to recover damages for the injury alleged to have been dome him by the wrongful act of the defendant, it would have been a bar to such action, unless it had been made to appear that such release was obtained by fraud or duress. So far as we are informed, wre have no authoritative construction of the provisions of this statute by the courts of this State, and it cannot be denied that the cases elsewhere, upon similar statutes, are somewhat conflicting. But the construction which we have adopted seems to us to be the only legitimate one which can be deduced from the terms of the statute, and it has the support of high authority, both in decided cases and in the treatises of eminent authors. See Read v. Great Eastern Railway Co., Law R., 3, Q. B., 555; Senior v. Ward, 102 E. C. L. R., 392; Griffith v. The Earle of Dudley, Law R., 9, Q. B., 357; Littlewood v. The Mayor of New York, 89 N. Y., 24; Cooley on Torts, 263-4; 2 Redf. Rail., 250 (4th edit.); Pierce on Railroads, 392; Patterson Railway Law, 410-508 ; Sher. & Redf. Neg., § 301; 2 Thomps. Neg., 1286.
It is contended, however, that the provisions of section 2186 render it necessary to place a different construction upon section' 2183 from that which has been applied elsewhere to similar statutes, because, it is urged, that section 2186 excluding a right of action in the'case there specified, implies that there is no such exclusion in any other case under the maxim expressio unius esi exelusio alterius. Such does not seem to be either the form oi intent of section 2186. It does not purport to constitute an ex. ception to any previous general declaration. On the contrary, its real object was to prevent a double remedy for the same wrongful act in any possible ease. A right of action having been secured to the administrator in all cases in ivhich an action might have been maintained by the deceased, if he had not died, it might have been contended that the administrator could still bring his action, even though the deceased had, in his life-time, brought his action and recovered judgment, because the test of the right of the administrator to maintain his action being the right *562of the deceased to recover, -which had been demonstrated by his recovery of judgment in his life-time, would, so far from barring, establish the right of the administrator to recover, and hence to avoid this double liability for the same wrongful act, the provisions of section 2186 were inserted, not as an exception, but as a separate section.
We have not deemed it necessary to go into the question, much discussed elsewhere, as to whether the statute gives a new cause of action, or simply continues the original cause of action, accruing to the party injured, which would otherwise terminate with his life, enlarging its scope so as to embrace compensation for the injury resulting from the death; for our conclusion is drawn from the terms of the statute, as evidencing the true intent of the legislature. We may say, however, that if the purpose was to create a new and independent cause of action, it is a little singular that the legislature should expressly provide, as it has done in section 2186, for the defeat of one cause of action accruing to one person, by the enforcement of another cause of action which had accrued to another person. It seems to us, therefore, that the provisions of section 2186, so far from weakening, rather confirm our view of the true intent and meaning of the statute.
The judgment of this court is, that the judgment of the Circuit Court be reversed, and the case be remanded to that court for a new trial.