(dissenting). The majority opinion frankly concedes “that a large number, and perhaps a majority, of-the cases wherein this precise question was under consideration” have held contrary to the conclusions announced in that opinion. With equal frankness it affirms that:
“One case backed by reasoning that is cogent may be sufficient to oritweigh any number of opinions wherein the argument, even though forcible, lacks that convincing power that forces ■conviction.”
We are to assume, therefore, that the majority opinion presents such cogent reasoning. It seems to me, 'however, that it affords an illuminating example of an .argument to show what a court thinks the law ought to be, rather than a satisfactory demonstration- of what it is. The reasoning intended to show two distinct “causes of action” under our statute is founded on an assumed elementary principle — the right of the wife to the husband’s support. It is said to be a duty resting upon every •person not to deprive the wife of the husband’s support, and *230upon this is based the legal conclusion that, whenever the right of the wife to the husband’s support is violated by the wrongful act of a third person, such act should create a right of action in the wife. The assumption in the reasoning is that any negligent and wrongful injury to the husband which lessens the support of the wife should give her -a cause of action, and that we must presume it was the legislative intent, in -changing the common-law rules, to confirm in her a separate right of action for every diminution- of her means of support arising from a wrongful injury to the husband. The fallacy lies in the assumption that the legislation- under discussion w-as intended to create such a right of action in the wife. Neither at common law nor by legislation does such- right exist, nor ever has- existed in this state, except for injury to support caused by unlawful sales of intoxicating liquors. For all personal injuries the right of action for any injury which affects the ability of the husband to support the wife exists only in the injured husband him-self, so long as he is living, and the wrongdoer who compensates the husband places in his hands the means of support of which the wife is potentially deprived by the wrongful act, and no legal liability to her has ever existed. The marital obligation for her support creates a conclusive legal presumption that he will apply such damages received by him, as -he will his earnings and other property, for her support, and that she is thus compensated. These statutes were never intended in any degree to- affect the legal rights of the wife or to- limit the control of the husband over his property or his dioses in action while living, and no act of his while living which was valid when done, no- matter in what degree it may be thought to affect the support of the wife, was ever intended to -be invalidated or rendered ineffective by these enactments. To assume the contrary as a legislative intent would be to presume that a Legislature would intend or undertake to say that every transfer or loss of property by the husband in his lifetime which would affect the future support of his wife should be declared ineffective.
It seems to me that a good many decisions of other courts, as well as the majority opinion in this case, present a somewhat confused interpretation of these statutes, • which were enacted only for oile distinct purpose, viz., that of abrogating two rules *231which became incorporated in the ancient common law: First, “that the death of a human being cannot be complained of as a civil injury for which 'damages are recoverable in a court of law;” and, second, “that a right or cause of action which ¡belonged to an injured person while living -was extinguished by his death.” Denunciation of these ancient rules may add somewhat to our appreciation of our own modern wisdom-, but it serves no real ¡purpose in the discussion of these statutes. Those rules, •however, must necessarily be considered -in the interpretation of these statutes, and' the objects sought to be accomplished by their enactment. The character and effect of particular statutory changes in the common-l'aw rules referred to in our own state, and in other states, should be our guide in the interpretation- of such statutes. It seems to -me that nearly all the fallacies of. reasoning and conflicting views found in the decided cases arise from a total or partial misconception of the real purpose of this class of legislation. It was not its purpose to enlarge or change any existing law which made it the duty of the 'husband to support t-he wife, nor to change -the law which gave her the legal right to demand support from him. It w'as n‘ot intended in any degree to change or limit the husband’s control during his lifetime of property or choses in action which might ultimately be devoted to her support. It was intended only to ¡secure to her that which, under common-law rules, she would have lost upon the happening of his death. The statutes, I think, should be con-' strued, as many courts have -construed them, merely as intended to authorize a rec'overy of damages after the death of the husband for a previously uncompensated injury to ’the husband’s earning capacity. It -must be conceded that the reasoning and logic in many of the decided cases is! unsatisfactory, and subject to criticism. This, I think, is due largely to a misconceptoin of what constitutes the cause of action, and because, as said by Justice WHITING, some courts have failed “to distinguish between a cause of action and one single element of such cause of action.” All of these statutes, however, no matter what their phraseology, were primarily intended to accomplish a single purpose — the abrogation of the common-law rules which inhibited a civil remedy in damages for a wrongful death, or for personal injuries which later resulted in death. They all deal with condi*232Hons which arise after the death of the person injured. The right of action, under all the statutes, must therefore necesarily foe vested in. a third person, either the personal representative for the benefit of the estate, or for the benefit of particular .persons named in the statute, or given to particular beneficiaries, such as ■the wife or children.
The statutes, when carefully analyzed, differ chiefly as to the person who may bring the action and the date when the damages accrue or from which they are computed, or the kind of damages recoverable. Some statutes, permit recovery of the identical damages the deceased himself might have recovered, with added pecuniary damages to the wife or family resulting from the death. Others permit a recovery by the personal representative for the benefit of the estate of suda damages as the deceased himself might have recovered, and also permit a further recovery by the wif-e or personal representative of damages to her support which follow and are the result of the death. Other statutes ignore the intervening damages, and permit a recovery only for the damages to the wife’s means of support which result from the death itself. The various statutes differ essentially only as to the persons in whom' the right of action is vested after death and the kind and measure of damages which are recoverable. • In every instance and under all the statutes, “the cause of action” is the wrongful personal injury. No. one doubts a single wrongful act may result in separate and distinct injuries to two or more separate and distinct persons or rights, and' that either of such injured -persons may maintain an action for bis own distinct damage. Nor will any one deny the power of the Legislature to split the total aggregate damages resulting from a wrongful injury to the husband by giving a pant to the estate and a part to the wife. But I think no one will assert that legislative power exists to require the wrongdoer, first, to pay the total aggregate damages to the estate,. and, again, to pay the total ’aggregate damages to the wife. The controlling principle is that, when the wrongdoer has once paid the agreed, or legally ascertained, total damages, to the person entitled to receive the! same at the time such payment is made, the original wrongful aot is fully satisfied and the right of action therefor extinguished. The husband, during his lifetime, is and must foe deemed com*233petent to place a valuation upon his own services as a means of support for his wife and family, and this, not because, as suggested in certain decisions, the wife is privy to his acts, bu-t because the law deems him competent in his lifetime to safeguard ■and protect all her rights, in the exercise o.f his duty of support. Some of these statutes which permit a recovery of the same damages the deceased would have had in his own favor had he survived his injuries go no further than to abrogate one rule of the common law, viz., that a right of action for personal injuries is extinguished by the death of the injured person. Under these statutes, the damage to the estate or 'beneficiaries which result from the death itself -are not recoverable. Another class of statutes ignore certain elements of damage which the deceased in his lifetime might have recovered, such as' expenses of nursing, medical attention, and solatium, and permit only a recovery equal to the pecuniary loss of support sustained by the beneficiaries 'by reason of the death alone. Some courts have construed the latter class of statutes as creating a new cause of action for the. death. This is wholly wrong. The common-law rule was that, although a criminal or negligent act which caused death was tortious and wrongful, yet the damage which might flow therefrom was not recoverable in a civil action.
The origin of this rule and the reasoning upon which it was founded' are both obscure, though the rule itself comes down from ancient times. Some law writers have surmised that it ■had its origin in the idea that a man could not have damages for his own death. The justice of this! rule however, came to be questioned later, when it was recognized that a wrongful act which caused death might occasion injury, through the death itself, to the estate of the decedent, or to those dependent upon him for support. It thus 'became apparent that the common-law rule should be changed, and a rule for estimating' damage flowing from the wrong, either to the estate or to third persons; should be established and fixed by law. This was done by the Lord Campbell' Act, about 70 years ago, and this aot was followed in almost' every jurisdiction where the English common law prevailed, by statutes similar in their purpose to the original act, but varying as to the riile of damages and the persons who might maintain an action therefor. But the wrongful act which *234caused the death has always been recognized as the cause of action, though the damages are to be measured by the consequences flowing from the act, or the death itself. In some jurisdictions where a period of time intervened between tire injury and the death, the damages which the injured person might have recovered -in his lifetime are added to the damages flowing from his subsequent death, and the total damages may be recovered in a singe action. In other jurisdictions -the intervening damage is given to the estate, and the damage flowing from the death to specific beneficiaries; while in still others the common-law rule that the right of action is extinguished by death is modified only to the extent of allowing a recovery of the damage flowing directly from the death itself. The Lord ’Campbell Act has' been ■so construed by the Illinois courts (Prouty v. City of Chicago, 250 Ill. 222, 95 N. E. 147), although, under other statutes of that state, it is held that, where the injured person dies from another cause than the injury, the cause of action for damages which accrued prior to the death survives to the administrator (Holton v. Daily, 160 Ill. 131; Devine v. Healy, 241 Ill. 34, 89 N. E. 251; Chicago & E. I. R. Co. v. O’Conner, 119 Ill. 586, 9 N. E. 263).
There is no rule of law, statutory or otherwise, based on the theory that the wife is entitled to the benefit of the whole, and not a part, of the husband’s earning capacity, which gives the wife a separate right of action ag'ainst the wrongdoer, where the husband, in his lifetime, chooses to accept in settlement of his personal injuries an amount less than the full actual damages to his earning capacity. There may be those who think this ought to be the law, but it is not at the present time. The only safe judicial method is to follow the law as it is until such time as some “cogent reasoning” shall move the legislative wisdom to enact other laws. If the husband has the absolute right, during his lifetime, feo settle and accept compensation for personal injuries to1 himself, the extent of such injuries is wholly immaterial. • He may know that the injuries he has received will totally disable him for life, and that he may become utterly useless to himself and family, a condition, worse than death, in so far as it affects the wife’s right to his support, but so long- as he lives his legal right to settle with the wrongdoer will not be *235■denied. He may even know that he will die as a result of s'uch injuries, and yet no' law exists which deprives him of the legal light to estimate the damages, and to make settlement for the injury, even if it be conceded that such settlement involves the wife’s means of support. The law gives him the absolute right to do that which he deems wisest and best, both for himself and his wife or his estate, so long as he lives, and is mentally capable of exercising the right. So long as he lives, the. law does not consider her right of support and his right to settle for an injury to himself as two distinct things. They are SO' correlated as to he inseparable. It would be idle to discuss the wisdom or justice of legislation which might require the wife’s right to future support to 'be taken into account when settlements are made in his lifetime for personal injuries to the husband. We need only observe that at the present time the law does! not require it, no matter what may be the extent of the injury. But a wholly different situation is presented when the husband 'has been wrongfully injured, and death ensues as the result of such injuries, the h%isband not halving been compensated in his lifetime. In such cases, the ancient rules of the common law left the wife helpless indeed. She could not sue for the loss of support by reason of his death, nor on the right of action the husband himself had' against the wrongdoer, for that was extinguished-by his death. It was precisely -this situation which the Lord Campbell Act sought to remedy, by changing the common-law rules, and', when properly interpreted, it goes no further. It was intended to allow her that which, prior to 'his death, she had not, but might have received through her husband 'had he lived, for the total loss of his earning power, viz., damages. To accomplish this no change in existing 'common law was necessary, save only a chang-e in the two rules which w’ould become operative by reason of the death, and would render the wrongdoer immune from an action in the 1'aw courts. The measure of damages recoverable' may be defined with reasonable certainty when the Lord Campbell Act is thus construed. It was intended to secure to her that which the husband had neglected or failed to obtain for her in his lifetime. When the husband had not himself in his lifetime estimated and accepted, or caused to be liquidated, the damages, the act gave her the right to maintain an action for' *236complete liquidation of the damages which he. had not received, and which upon his death, of right, ought to. belong to her, and the act carefully provides that the total pecuniary' inptry to her means of support by reason of his death shall 'be her rule of damages. But endless difficulties arose when an attempt was made to determine a rule of damages to. be applied where the deceased had made settlement or recovery in bis lifetime. It is just at this point that all the conflicting views of courts arise. The numerous quotations from decisions found in the majority opinion show how diverse and irreconcilable are the views of courts as to the purposes and effect of this'legislation, and.I venture the suggestion that it arises from an unnecessary assumption either tnat these statutes create a new cause of action, or that they are survival statutes. The truth seems to be that a conviction arose in the minds of men, first, that a right to damages for a personal injury which caused death should exist, and that -it ought not to 'become unenforceable because of the death of the injured person. Then, viewing the situation after death, the question would arise:
“If the right to recover damages for an uncompensated fatal injury is to be given to the wife, children, or estate, what should be the measure of damages?”
The answer seems to have been that the wife or children should be given damage equal to. both the loss of support which the deceased husband himself might have recovered and devoted to their use had-he lived, and also, -the additional pecuniary loss they sustained by reason of his death, and which he might have contributed to them had he survived the injury. The thought was that the “cause of action” already existed, and that it was only necessary to. define the damages, both in extent and character, which were to be saved from extinction by reason of the husband’s, death. This rule of damages could be made applicable as well where death was instantaneous, because it was intended •to cover the whole pecuniary value of his earning capacity, as a means! of support to his wife, or as an increment to> the estate. This is described in the statute as the “pecuniary” loss or injury by reason of the death. Some courts' have viewed this rule of damages as a “new cause of action” created by statute. No wonder, when one court insists that these acts are survival statutes, and another that a rule of damages creates a new “cause *237of action” never heard of -before, that there should be conflict of decision, lame reasoning, h-air-spliting distinctions, profound and abstruse definitions of terms, and almost hopeless confusion. And this in face of the fact -quite- universally conceded by the courts that the Lord -Compbell Act was conceived' and enacted only because of, and to aborgate, the two common-law rules referred to above, as is shown by the criticism of those ancient rules in the majority opinion, and in the elaborate 'quotations- from certain courts. The fact is that these statutes were enacted for only- one purpose, and were not intended o-r -designed to- change any right o-f -the husband- to deal in hisi lifetime with his property or ch-oses in action, no matter in what way or to what extent -his exercise of that right might affect .the wife’s means- o-f support or the value of his estate. It must follow therefore, that when-, in his lifetime, he has estimated and received compensation for the injury, the cause -of action is extinguished, and .no right of action remains to- -be exercised by his dependents or personal representatives.
The law in force in this state (chapter 301, Laws 1909) provides that the wrongdoer “shall be liable to an action fo-r damages, not withstanding the death of the person injured,” and that -the damages; may be “proportionate to- the pecuniary injury resulting from such death, to- the persons respectively for whose benefit such action shall be brought.” The statutes of 21 other 'states are similar to our own in that damages- are recoverable “notwithstanding -the death.” See memoranda at close of Judge Gates’ opinion. In some of these states coexisting statutes are deemed (to affect the interpretation of the clause of the statute above referred' to. In this state no- such statutes exist. Our statute- is1 -the original Lord' Campbell Act, -and- so eminent a jurist as Mr. Justice 'C-ooIey, speaking of that act, s-ays:
“It is. seen on a perusal of this statute that it gives an action only when- -tire deceased him-self, if the injury had not resulted in -his death, might have- maintained one. In other words, it continues for the benefit of the wife, husband, etc., a right of -action which at the -common law would have terminated at the death, and enlau'ges its scofe to embrace the injury resulting from the death. If, therefore, the party injured 'had compromised for the injury and accepted satisfaction, previously to the death, *238there could have teen no further right of action, and consequently no suit under the statute.”
This is exactly the interpretation given the Lord Campbell Act in the first case arising under it in the English courts. 1'n the case of Reed v. G. E. Ry. Co., L. R. 3 Q. B. 555, the surviving widow sued the railway company for neglig'ence whereby her husband was injured, of which injuries he died. The defendant pleaded that in the deceased’s lifetime he had been paid, and had accepted, a sum of money in full satisfaction and discharge of all premises and) causes of action against the defendants. The ■court held that the cause of action was the defendant’s negligence, which had been satisfied in the deceased’s lifetime, and that the death of the husband did not create a fresh cause of action. Commenting 01a section 2 of the act, which prescribes the ■damages, the court said:
“This section may provide a new principle as to the assessment of damages, but it does not give any new right of action.”
In Louisville Ry. Co. v. Taylor, 135 Ky. 738, 123 S. W. 281, 27 L. R. A. (N. &.) 176, under a similar statute, the ruling of the English court in the Read case was followed. The court said:
“The plain purpose of the act of 1854 [Acts 1853-54, c. 964] was simply to do away with the common-law holding that no recovery could be had when death resulted immediately. * * * If, notwithstanding the settlement, the representative of the decedent may recover in this action, he might equally recover if the decedent had brought a suit and recovered a large sum for his injury before his death. The amount of the settlement is not material, except as the amount paid may throw light on the good faith of the settlement” — citing a large number of decisions sustaining the rule.
Iir the note in the latter case found in 27 L. R. A. (N. S.) the learned annotator, at pag'e 176, says:
“Without reference to the question of the construction placed upon statutes in substance similar to- Lord 'Campbell’s Act, as to whether such statutes give an independent cause of action, the general rule is that such action can only be maintained under circumstances such as would entitle the injured person in his lifetime to have maintained it; and he may, subsequent to the *239injury, settle with the tort-feasor for the damages caused him thereby, and such settlement is a bar to any subsequent action by his widow, next of kin, or .personal representative for his death because of such injuries, unless there is fraud or duress in •procuring the settlement.”
In Strode v. St. Louis Transit Co., 197 Mo. 616, 95 S. W. 851, 7 Ann. Cas. 1084, the court said:
“The general concensus of opinion seems to be that the gist cind foundation of.the rig'ht in all cases is the wrongful act, and that for such wrongful act -but one recovery should be had, and that, if the deceased had received satisfaction in his lifetime, either iby settlement and adjustment or by adjudication in the courts, no further right of action existed.”
In Littlewood v. Mayor, etc., 89 N. Y. 24, 42 Am. Rep. 271, under a statute identical with our own, Rapallo, J., said:
“I can find nothing in the act of 1847 or the amendments of 1849 and 1870 manifesting an intention to impose the liability in question, where the deceased-has in his lifetime recovered compensation for his injuries. The act has made an important change in the common law, in affording a remedy in cases where the death would have protected the wrongdoer against any recovery whatever; and in holding it applicable to such cases only we think that all is accomplished that the Legislature intended. The argument in • favor of the construction contended for on the part of the plaintiff is based largely upon the provisions relating to the damages to be recovered and the disposition to be made of them. Some provisions on those subjects were necessary by reason of the novelty of the action, and such have been adopted as were deemed most appropriate, but they should not control the construction of that part of the statute which imposes the liability, or extend it beyond -the fair import of its terms.”
In Meekin v. Brooklyn Heights R. Co., 164 N. Y. 153, 58 N. E. 50, 51 L. R. A. 235, 79 Am. St. Rep. 635, that count held that the measure of damages is the pecuniary loss of the beneficiaries designated -by the statute, and that the suffering of the deceased cannot be considered. This ruling was approved in Mich. Cent. R. Co. v. Vreeland, 227 U. S. 70, 33 Sup. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176; Lindstrom v. International *240Nav. Co. (C. C.) 177 Fed. 173; Titman v. N. Y., 57 Hun, 473, 10 N. Y. Supp. 689.
The relationship -between alimony in a divorce action and damages recoverable under the Lord 'Campbell Act, I think, may be considered an original -discovery, and as having been first announced in the majority opinion. The principle might be stated thus: The court compels the husband to- -pay alimony to the wife for her support while the -husband is still living. The Lord Campbell Act requires! the wrongdoer to pay the wife alimony in the. form of damages after the husband is dead. But what wo-uldi be -the situation if the -wrongdoer, prior to- the husband’s death, 'had paid to the husband the entire alimony or damages, thus passing over to- the -husband • the means- of support or of alimony due from- the wrongdoer? Would the court deny the wrongdoer the right to place su-ch money in the -husband’s 'hands, lest, -perchance, it should be dissipated or be insufficient in amount, and the wife thus lose her alimony or support? If the-court so holds, it is- easy to see that the Lord Campbell Act should have gone directly to the point and declared that, when a wrongful act resulted in the death of the h-usband, the wrong-dc-er should thereafter -be required to support the wife. If this is the principle underlying the act, it -must be conceded it was -badly framed to accomplish that purpose. The majority opinion, however, goes further, and asserts that -the husband cannot release -a “cause of action” which has- not then accrued, which may never accrue, which from its very nature cannot accrue until his -death, which, if it ever does- -accrue, is in favor of the wife ,and is based solely upon the violation of a right vested' in the w-ife. This statement is an epitome of all the false premises assumed in the minority decisions. It ignores- the fundamental distinction plainly pointed out in the majority opinion itself -between the “cause of action” and- the “right of action.” The “cause of action” accrues- when the wrongful -injury is inflicted upon the husband, the “right o-f action” becomes vested in the wife up-on the happening of -his death, and the measure of her damages is the pecuniary value of the lo-ss of support resulting fro-m the death. But where, -during the lifetime of the husband, ■he has received damages in full satisfaction of the “cause of action” — the wrongful injury — no “right of action” can, -or ever *241does, accrue in favor of the wife. In short, the Lord Campbell Act. gives the wife a “right of action” to recover pecuniary damages for a wrongful injury to the husband resulting in his death, and not compensated during his lifetime.
The majority opinion rests upon its own special reasoning, and admits that its conclusion is contrary to the views of “a large number, and perhaps a majority, of the cases.” But the learned annotator in the Taylor case, 27 L. R. A. (N. S.) 176, goes still further, and unqualifiedly states that:
“The cases, however, are substantially in - accord as to the effect of a settlement by an injured party for injuries which thereafter cause death, on the right of his personal representative or widow or next of kin to maintain an action for his wrongful death caused b.y such injury.”
This statement iby so careful and eminent an authority would seem to render a further citation or discussion of decided cases; unnecessary. Very “cogent reasoning,” indeed, is required to overturn the practically unanimous decisions of all the courts that the' settlement or recovery of damages in the lifetime of the injured person satisfies the wrongful injury.