dissenting: As said in Bolick v. R. R., 138 N. C., 370, “A cause for damages by wrongful death cannot accrue until tbe death,” and it was held that, therefore, it could not be set up by amendment to an action which bad been instituted by tbe deceased himself for injuries which subsequently resulted in bis death. It would surely follow from tbis that they are, so to speak, independent causes of action, and that a recovery for or tbe compromise of a cause of action for personal injuries by tbe deceased could not possibly bar an action for bis wrongful death, which could only accrue subsequent thereto by bis death.
Whatever may be tbe opinion of tbe individual members of tbis Court whether a cause of action should be maintainable for wrongful death, tbis is not a matter for tbe courts, but for legislation. Formerly such cause of action could not be maintained. Tbe Legislature has now provided that such cause of action can be asserted. In tbis ease there has been a death, and tbe complaint alleges that it was caused by tbe negligence of tbe defendant. No one can recover for such cause of action except tbe administrator or executor of tbe deceased. Killian *557v. R. R., 128 N. C., 261, where the history of this legislation is given. It is now asserted, in this ease, by the personal representative for the first time. It has not been paid, and it has not been compromised, and it did not exist until the death of his intestate, who could not, and, indeed, did not attempt to, settle for such wrongful death.
It is true that in this action there should not be allowed any recovery for the physical pain and injury suffered by the intestate, which is usually an element in the damages recoverable fox wrongful death, as this element has already been paid for. But the damages sustained by the wrongful death were given by the statute, and accrued subsequent to the recovery of the judgment by the intestate for his physical injuries, and the statute does not contemplate that payment for injuries and physical sufferings to the plaintiff’s intestate should bar the family of the decedent from recovering for their loss of the value of his services to them. This is a subsequent and greater damage, and accrues to a different party.
It is true that the Legislature might amend the statute to so provide. But it is very doubtful, considering the object of the statute, which is principally to provide for- the dependent family of the decedent, that •the Legislature would so enact. Certainly it has not so enacted, and there is nothing in the wording of the statute which intimates to the Court that the General Assembly so intended.
In Bolick v. R. R., 138 N. C., 373, it is.said: “It is no defense to an' action to recover for the wrongful death of the intestate that he had in his lifetime recovered a judgment against the same defendant for personal injuries which resulted in his death.” The opinion in this case added: “We think this was correctly held, for there the death was a cause of action accruing subsequent to the judgment.”
In Whitehurst v. R. R., 160 N. C., 2, the Court, citing Bolick v. R. R., supra, held that where the plaintiff’s intestate began an action for personal injuries and died before its termination his personal representative could bring an action for the wrongful death.
In Broadnax v. Broadnax, 160 N. C., 432, it was held, again citing Bolick v. R. R., supra, that the amount of damages recovered for a wrongful death is not liable to be applied in payment of debts and legacies, and that such cause of action did not exist until the statutes therein recited, beginning with chapter 39, Laws 1854-55, and succeeding statutes, which are now Eevisal, 59 and 60. It follows inevitably that, as the action can only be brought by the personal representative, the decedent could not recover or compromise for such cause of action if he had attempted to do so, which he did not, in this case.
In Watts v. Vanderbilt, 167 N. C., 567, it was held, citing Bolick v. R. R., that actions for injuries to the person do not survive. It was for these injuries that the intestate recovered. It is certainly based *558upon authority and reason, and settled by the above decisions, that tbe cause of action for which the deceased recovered judgment is an entirely separate and distinct cause of action from that for wrongful death, for which this action is brought. The cause of action for personal injuries would have abated at the death of the decedent. The cause of action for wrongful death did not accrue till the death, and is created by the statute and in favor of a different party. A recovery, or a compromise, for the former, being an entirely separate and distinct matter both in law and fact and in a different right, such judgment or compromise cannot bar a recovery by the plaintiff for this entirely separate and distinct action for wrongful death.
This case depends upon the construction of our own statute, but the conclusion reached in this dissent is sustained by many decisions upon similar statutes elsewhere. Sturges v. Sturges, 126 Ky., 12 L. R. A. (N. S.), 1014; Chesapeake v. Dixon, 179 U. S., 131; Donahue v. Drexler, 82 Ky., 157, 56 Am. Rep., 886; Meyer v. Coll, 19 Ky., 480.
In Donahue v. Drexler, 82 Ky., 157, 56 Am. Rep., 886, it was held that a settlement by the decedent in his lifetime for injuries occasioned by assault and battery was no bar to an action by his widow for damages on account of his death caused thereby — the latter action being maintainable under the laws of that State.
In 8 Ruling Case Law, 732, it is said: “Authorities are not wanting which take the view that under the survival act and the death act two separate and distinct causes' of action are created which may coexist, but have no connection, and that these two actions may be prosecuted concurrently. Davis v. R. R., 53 Ark., 117; Gas Co. v. Orr, 59 Ark., 215; Telephone Co. v. Cassin, 111 Ga., 575; Stewart v. Electric Co., 104 Md., 332, 8 L. R. A. (N. S.), 384; Bownes v. Beston, 165 Mass., 344; Brown v. R. R., 106 Wis., 137. The two actions, though prosecuted (under those statutes) by the same personal representative, are not in the same right, and hence a recovery and satisfaction i.s not a bar to recovery in the other. R. R. v. Van Alstine, 77 Ohio St., 395. These decisions proceed on the ground that a statute similar to Lord Campbell’s Act creates a new cause of action, while the survival statute ■merely saves to the personal representative of the deceased an action which he could have brought in his lifetime for injuries arising from negligence and default, and that it must necessarily follow that neither action is an alternative or substitute for the other, and, consequently, that both may be maintained. Stewart v. Electric Co., 104 Md., 332, 8 L. R. A. (N. S.), 384; Causey v. R. R., 166 N. C., 5.
Any injustice to the defendant, it was held, could be prevented by the trial judge limiting the recovery in the survival action for personal injuries to the loss occasioned to the deceased prior to his death, and, in the action for the wrongful death, to the pecuniary loss sustained *559by tbe beneficiaries under sucb act. Stewart v. Electric Co., supra; Brown v. R. R., supra. In Buck v. R. R., 125 Cal., 361, it is said: “Under our statutes the injured person might survive long enough to sue and recover damages or settle with the wrongdoer, and then by his death a new cause of action would accrue to his heirs.”
In Brown v. Electric Co., 70 Am. St., 684, it was held: “If a statute makes the killing of a passenger by a railroad corporation through gross negligence punishable by a penalty payable to the widow and children or next of kin, such passenger cannot release the corporation from liability, and, therefore, his agreement to ’ do so cannot bar an action for his death' brought by an administrator for the benefit of the persons entitled to the penalty. In the same case it is said: “It is an action for damages arising from the mere fact of death — not damages to the deceased, but damages to his successors under the statute. Therefore, we cannot comprehend the reasoning which . enables an injured person to release a cause of action which has not accrued, and cannot accrue until his death, and which then accrues to third persons. It would be necessary, to support such a conclusion, that we admit that a person has a right of action for his own death. A greater degree of absurdity would not be attained in the enactment of a statute making suicide punishable as murder in the first degree.”
Upon the authorities and, it would seem, upon the logic and the letter of the statute the plaintiff’s right of action in this case is an entirely separate and distinct cause of action from that for which his intestate recovered, and is not barred by the judgment recovered by such intestate for the personal injuries sustained, which later resulted in his death and the creation thereby of the cause of action in favor of bis personal representative for the benefit of those entitled to share in the distribution of his personal property. Eevisal, 59. This recovery, it is expressly stated, shall be “such damages as are a fair and just compensation for the pecuniary injury resulting from such death.” Eevisal, 60. These could not possibly have accruéd to the intestate or have been estimated in his favor.