dissented as follows:
The question in the case arises upon the construction of sec. 2291 of the Code, and is, “Does the statute of limitations of one year, for the recovery of damages for injury to the person, apply to the present action?”
I concur in the conclusion of Judge Sneed in an opinion prepared in this case at the last term, and as an additional reason in support of its correctness, hold that the act in question creates a new and distinct ground of suit, an,d in repealing the rule of common law, gives a cause for suit and recovery that neither did nor could have existed in the person injured.
The constituents making up the cause of action on his part, to-wit; pains, physicians bills, mental agony, and the like, do not enter into those upon which the action for the benefit of the widow and children is based, which are the loss of the social relations of husband and wife and parent and child, the financial educational, and material aid, and the advice and protection of the husband and father.
While' the husband and father lives, there is no right of action in the wife and children, the right only accrues at his death, and then for the consequences resulting to them from such death. If the husband and father, being injured, linger for more than twelve months without bringing suit, and then die, I do not think the doctrine that the time of more than one year from the injuries to the death having elapsed, will bar the right to sue for the benefit of the widow, and *670■children, can be maintained, for the very strong reason that no such right existed during that time. Time never runs against that which has no existence. A right of action must first accrue to and vest in a party before time can commence to operate against it ■or destroy it. If the party injured recover permanently, he may still sue for the injuries to the person. If, however, after suit brought, he dies from, other causes, although within a year after the- injuries received, no right of action passes to the personal representative for the benefit of the family of the deceased, the words of the statute expressly .exclude such interpretation, thereby making inevitable the conclusion that the right of action after the death was intended by the Legislature to give to the wife and children the means of recovering compensation for the losses already indicated as follows to them from the death of the husband and father. To reimburse them as far as may be in money for their deprivation of that protection, support, and dependance once had in the husband •and father.
Eor the mutilation, disfiguring, and deformity to •the party injured, the wife and children can maintain no suit; the party injured while living may. He may ■exhibit these things in aggravation of damages; his •death puts an end to them as facts for the considertion of courts and juries, for the reason that in injuries to the person these things constitute the grounds of suit, while in suits like the present the sole inquiry is, did the death result from the injury?
If it did, what is the measure of damages? . In the *671estimate of which it can make no difference whether the • injury mangled and disfigured, or left not the •slightest mark of violence.
The one action is for injury to the person, immediate and direct, and under pi’oper rules of pleading is tresspass. The other for wrongs consequential and remote, and should be case.
By the statute it is not the action which passes to the representative, but a right of action; nor is it the action wich does not abate, but the right of action. I am unable to see how, under a declaraction for injures to the person, claiming damages for the loss of time, physical and mental suffering, outlay for medical attention, etc., etc., the representative can proceed for the consequential damages resulting to the widow and children from the death of the original plaintiff. If, after his death, the suit remain in court, under the provisions of the statute, new pleadings should in strictness be had.
That the Legislature intended to create a new right of action is further made manifest in the provision that the recovery shall be for the benefit of the widow and next of kin, free from, the claims of crédito^.
■ I am of opinion this is not an action for injuries to the person, and that the statute of limitations of one year does not apply.