— I concur in the affirmance of this case, but for reasons different from those expressed in the majority opinion.
At common law, as is well known, no civil action would lie for a wrongful death. We now have, and have had for a great number of years, íavo and only two statutes, each authorizing an action for wrongful death —one known as the Homicide Statute (Code, §§ 2485, 2486), and the other as the Employer’s Liability Act (Code, §§ 3019-3912).
*547The chief and controlling distinctions between the two are: First, that the Homicide Statute authorizes a recovery when, and only when, the deceased could have maintained a common-law action for the wrongful act had- it not caused death; while the Employer’s Act authorizes an action in those cases, and in those only, in which the deceased servant could have maintained a statutory action against the master, thereunder, had death not resulted. Second, the damages recovered under the former are punitive only, while those recovered under the latter are compensatory only.
Thus it appears that each statute has an entirely separate and distinct field and scope of operation; the one authorizing a recovery when and only when the deceased could have maintained a common-law action for the wrongful act had death not resulted; the other, when and only when the deceased conld have maintained the statutory action under the Employer’s Liability Act had death not resulted.
It was evidently never intended that there should be two separate and distinct actions against the same defendant, for the same wrongful death. The latter statute was intended to reach, and did reach, cases which were not reached by the Homicide Statute.
It is possible that in some cases there might be a recovery against the same defendant under either statute, but certainly not under both — any more than there could be two recoveries by the deceased, for the same injury, had death not intervened. It may be that a servant can recover either at common law or under the statute for the same injury, but certainly he cannot recover under both for the same injury. For the same reason, there cannot be 'two recoveries in case the injury produces death.
*548It is strange that the damages recoverable under one statute should be punitive while those recoverable under the other are compensatory; but this has been frequently explained by this court. The Homicide Statute was first in point of time, and was construed to be punitive, and had been readopted with that construction unon it, and, while the courts later doubted the correctness of the interpretation, they declined to change it after repeated readoptions. This error of construction, if such it was, having been pointed out by this court, when the Employer’s Liability Act was passed, and our statute being taken practically without alteration from the English Employer’s Act which had been construed by the English court to be compensatory only, this court, following the English court and its own judgment — the statute being new to our law— construed it to be compensatory only. The fact that one of the statutes is punitive and the other compensatory has necessarily led to more or less confusion and uncertainty as to whether or not there could be two or more recoveries for the same wrongful death; but it is perfectly certain, from an examination of the original statutes, and the various amendments of each, that it never was intended by the Legislature that there should be two actions against the same defendant for the same wrongful death.
Another source of confusion has resulted from the fact that under the Homicide Statute, if the deceased was a minor, the action is authorized to be brought either by the parent, under certain conditions, or by the personal representative; while under the Employer’s Act the action could be brought by the personal representative only. But the statutes, one or both, have never authorized two recoveries — one by the parent and one by the personal representative, though both could *549sue even at the same time. If a minor is killed, the parent may sue under the Homicide Statute, and the personal representative may sue under the Employer’s Act; hut there cannot, or should not, be two recoveries for the same death, for the reason that, if the wrongful act had not resulted in death, the minor could have joined a count declaring on his common-law right, with another declaring on his statutory right; but he would not be entitled to recover under both counts, though he might recover under either.
Suppose the parent sue under the Homicide Statute —which is the only one he can sue under — and recover: This will be a bar to an action by the administrator, for the reason that the parent’s action could be defended by showing liability only under the Employer’s Act, under which the parent cannot sue; but, if the parent fail, it is not a bar to an action under the Employer’s Act, for the reason that it might have been shown that if there was liability it was under the Employer’s Act, and not under the Homicide Act, which alone authorizes the parent to sue.
It would probably be well to authorize the parent to sue under the Employer’s Act just as he is authorized to sue under the Homicide Act, which would remove this trouble; but this is a question for the Legislature and not for the court.
The Homicide Statute expressly makes an action by either the parent or the personal representative a bar to another action by any one of them under either section of the Homicide Statute. It was unnecessary to make an action by the parent a bar to an action under the Employer’s Act, for the reason that the parent could not sue under that act.
Brother Simpson is of the opinion that section 2485 of the Code confers a separate and distinct right of ac*550tion from that of the Homicide Statute or that of the Employer’s Act. I think he is in error in this. This section is now, and has ever been, nothing but a part of the Homicide Statute, Avhich authorizes the parent as well as the personal representative to sue in case the deceased Avas a minor. If section 2485 has this effect, and has no relation to, or dependence upon, the Homicide or the Employer’s Statute, then it authorizes a recovery by either the parent or the personal representative, if the death was by a “wrongful act, omission or negligence,” notAvithstanding the deceased could not have recovered either at common law or under the Employer’s Act, on account of contributory negligence, assumption of risk, or other defenses. In other Avords, the wrong, fault, or contract even, of the deceased, Avould be no defense to the action of either the parent or the personal representative. Surely no such result was ever intended by the Legislature, any more than it was intended that there should be two or more recoveries against the same defendant, for the same wrongful death, notwithstanding the defendant might have been liable to the deceased if death had not resulted, either at common law or under the statue. It often happens that a master may be liable to a servant for an injury, both at common laAV and under the Employer’s Statute, but surely he would not be entitled to two recoveries merely because he could recover either at common law or under the statute.
For the same reason, it seems that there ought not to be two recoveries for the same wrongful death, even though there might-be a recovery under either the Homicide or the Employer’s Statute.
I concede that I can see no sufficient reason Avhy the damages should be punitive under one statute, and compensatory under the other, nor why the parent *551should be allowed to recover under the one and not under the other; but “Ita lex scripta est.” A change is matter for the Legislature, not for the court.