(dissenting). The minority decision© which Judge WHITING relies upon as containing- the more cogent reasoning are: (a) Either from states whose statutes differ fundamentally from the real Lord Campbell Act; or (b) if from states having- substantially that act, the court© base their arguments upon, decisions from states where the came of action is assumed to be for death, or upon the effect which other more or less related statutes have upon the proper solution of .the issue. It is not logical to call to one’s aid the decisions of courts of those states, where undoubtedly a new and independent right of action is given, such as Indiana and California, for instance, to support one’s argument that' the real Lord Campbell Act gave a new and independent cause of action for death. It is true, as pointed out in the majority opinion, that section 3 of our act authorizes the jury to “give such damages, not exceeding in any case $10,000, as they may think proportionate to the pecuniary injury resulting from such death.” It is also true that the real Lord Campbell Act contained the following similar language: *242“The jury may give such damages as they may think -proportioned to the injury resulting from such death.” But the distinction I desire to emphasize is that in. our statute, as in the original Lord Campbell Act, the cause of action that accrued to the husband is continued notzmthstmding his death, and no new cause of action is given. It is not the death which is the -cause of action, but it is the negligence which caused -the death that is the cause of action, and the death is material only as it relates to the damages which may be recovered. Cooley on Torts (2d Ed.) 309.
In the majority opinion the following decisions are cited and sometimes quoted from in support of the conclusion arrived at. Maney v. C., B. & Q. R. Co., 49 Ill. App. 105, is a decision by the intermediate Appellate Court of Illinois. It conflicts with Holton v. Daly, 106 Ill. 131, which decision was reaffirmed in Mooney v. Chicago, 239 Ill. 414, 88 N. E. 194, 17 years after the Maney decision. Whitford v. Panama R. Co., 23 N. Y. 465, was overruled <so far as the question at issue in the present case is concerned by Littlewood v. Mayor, 89 N. Y. 24, 42 Am. Rep. 271.
The majority -opinion quotes frpm- Mahoning Valley R. Co. v. Van Alstine, 77 Ohio St. 395, 83 N. E. 601, 14 L. R. A. (N. S.) 893, and Brown v. C. & N. W. R. Co., 102 Wis. 137, 77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579. In both of these the decision in Robinson v. C. P. R. Co. (1892) App. Cas. 481, was given great weight. The fact is that decision, although a House of Lord's decision, arose under the Quebec statute hereinafter cited, and which, a-s their Lordships pointed out, is not the Lord Campbell Act. The Wisconsin decision strongly intimated that a settlement with the injured person would' be a bar to the later action. Putman v. So. Pac. Co., 21 Or. 230, 27 Pac. 1033, is an Oregon decision based upon a statute unlike ours. Mo. Pac. R. Co. v. Bennett’s Estate , 5 Kan. App. 231, 47 Pac. 183, and Hulbert v. Topeka (C. C.) 34 Eed. 510, arose under the Kansas statute, which is not the Lord Campbell Act. Hurst v. Detroit City Ry. Co., 84 Mich. 539, 48 N. W. 44, is a Michigan decision. In Sweetland v. C. & G. T. R. Co., 117 Mich. 329, 75 N. W. 1066, 43 L. R. A. 568, the court said the language in the Hurst -case about there being two- rights of action was dictum. *243Bowes v. City of Boston, 155 Mass. 344, 29 N. E. 633, 15 L. R. A. 365, did not arise under the Lord Campbell Act. The decision in that case was to the effect that the right of action under section 18, c. 52, Pub. St. Mass. 1882, was independent of the right of action under section 17 -of said act. Burk v. Arcata, etc., R. Co., 125 Cal. 364, 57 Pac. 1065, 73 Am. St. Rep. 52, and Pittsburgh, C. C. & St. L. R. Co. v. Hosea, 152 Ind. 412, 53 N. E. 419, arose under statutes that are similar to the Oregon and-Kansas statutes.
What seems to me to be the fundamental fallacy of the majority opinion is -demonstrated by the illustration of the bullet. I do not apprehend that, if the collapse of the wall which caused the injury to plaintiff’s husband had also physically injured the plaintiff, appellants would for a moment contend that the settlement with the husband would have been a settlement of the plaintiff’s cause of action for her own physical injuries. The injury to- plaintiff in this case arises from the same act of negligence, but it accrues to plaintiff by reason of, and through, the injury to the husband, for which a full and complete settlement was made.
I think we erred in the former decision in this -case (32 S. D. 66, 142 N. W. 664) when we said that there were two -causes of action, and that “neither is the prosecution or satisfaction of either a bar to the prosecution and recovery on the other.” That error ought now to be corrected.
I concur fully with -the views so ably expressed by Judge SMITH.
Statutes which are the same, in substance, as the Lord ■Campbell Act in that they preserve the right of action notwithstanding -death: Arkansas, section 5225, Mansf.; Colorado, Mills’ Ann. St. 1912, section 2178; Florida, Gen. St. 1906, § 3145; Illinois, section 1, c. 70, Rev. St. 1885; Maine, Rev. St. 1903, c. 89, § 9, p. 784; Maryland, Pub. Gen. Laws 1888, p. 1020, art. 67, § 1; Michigan, Howell’s Ann. St. 1882, § 8313; Mississippi, Code 1880, § 1510; Missouri, Rev. St. 1909, § 5426; Nebraska, Cobbey’s' Ann. St. 1911, § 5199; New Jersey, Comp. St. 1910, p. 1907, § 7; New Mexico, Comp. L. 1897, § 3214; North Carolina, Revisal of 1905, § 59; North Dakota, Rev. Codes 1905, § 7686; Ohio, Rev. Statutes 1890, § 6134; Rhode *244Island, Gen. Laws 1909, c. 283, § 14, p. 998; South Carolina, Civ. Code 1912, § 3955; Vermont, Statues 1894, § 2451; Virginia, Code 1887, § 2902; West Virginia, Code 1899, c. 103, p. 774, § 5; Wisconsin, Rev. S‘t. 1878, § 4255; Wyoming, Comp. St. 1910, § 4291.
Statutes which in terms provide for an action for death or otherwise differ from the Lord Campbell Act: Alabama, Code 1907, § 2486; California, C. C. P. § 377; Connecticut, Gen. St. 1902, § 1094; Delaware, Rev. Code 1852 amended to 1893. p. 788 (13 Del. Laws, c. 31); Dist. of Columbia, Comp. St. 1887-89, p. 397; Georgia, C. C. 1895, § 3828; Idaho, Rev. Codes, § 4100; Indiana, Burns’ Ann. St. 1894, § 284; Kansas, C. C. § 422 (Gen. St. 1909, § 6017); Kentucky, Ky. St. § 6; Minnesota, Gen. St. 1913, § 8175; Montana, Ann. Code Civ. Proc. § 579 (Rev. Codes, § 6486); Nevada, Rev. Laws 1912, § 4997; New Hampshire, Pub. St. 1891, §§ 8-13, c. 191, p. 335; New York, section 1902, C. C. P. (vo-1. 1, Birdseye’s Stat. p. 859) ; Oklahoma, Comp. L. 1909, § 5945; Oregon, Lord’s Oregon Laws, § 380; Tennessee, Code 1884, § 3130; Texas, Vernon’s Sayles’ Civ. St. 1914, §§ 4694-4704; Utah, Comp. L. 1907, § ,2912; Washington, 2 Hill’s Ann. St. § 138; Quebec, C. C. Lower Canada, § 1056.