(dissenting). The plaintiff’s intestate lost her life through a collision and consequent burning of the car in which she was riding upon the defendant’s railroad. The plaintiff recovered a judgment of $1,110,— $1,000 upon, the first and $110 upon the second count of the declaration. A verdict was rendered for the defendant upon the third count. The defendant has brought error. The questions to be discussed pertain to the construction to be given to two statutes of this State, viz., 3 How. Stat. § 7397, and 2 How. Stat. §§ 8313, 8314, the first of which, for convenience, we will call the “ survival act,” and the last two sections the “death act.”
Section 7397 existed in 1846, but not in its present form; the words “for negligent injuries to the person” having been inserted by amendment in 1885. Sections 8313 and 8314 were enacted in 1848 (Act No. 38, Laws 1848) substantially in their present form, though a slight amendment, not affecting this case, was made in 1873 by Act No. 94,-Pub. Acts 1873. These several sections now read as follows:
“ Sec. 7397. In addition to the actions which survive *360by the common law, the following shall also survive; that is to say: Actions of replevin and trover; actions of assault and battery, false imprisonment, for goods taken and carried away, for negligent injuries to the person, and actions for damage done to real or personal estate.”
“Sec. 8313. Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, and recover damages, in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.
“Sec. 8314. Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and the amount recovered in every such action shall be distributed to the persons and in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered.”
The plaintiff’s declaration contained three counts; the first and second being laid under section 7397, respectively, claiming damages for the injury to the person and property of the intestate. The last count is based upon sections 8313 and 8314, and claims damages for causing the death of the plaintiff’s intestate.
The defendant’s counsel contend that there should have been no recovery under the first count, for two reasons:
1. Because the death was instantaneous, and therefore there was never a right of action in the intestate, and consequently none to survive.
2. Because, when death results from a negligent act before judgment rendered in an action brought by the deceased, the survival act does not apply, and redress must be sought under the death act.
It is contended by plaintiff’s counsel that rights of action *361may exist under both statutes when the death is not instantaneous, and that they may be joined in one action. If this contention of the plaintiff’s counsel be correct, there would seem no good reason for holding that the recovery of a judgment by the injured person should be a bar to an action under the death act for his subsequent death, as recovery in such case is permitted, not upon the injury sustained by the deceased, but upon the pecuniary injury to the survivors, occasioned by his death. Yet we find the courts generally holding that such recovery is a bar to a subsequent action by the administrator, and we think the legislature intended that it should be. Had the intention been otherwise, it is probable that the act would have permitted each survivor to bring and prosecute his own action, for his own benefit, instead of requiring it to be brought by the personal representative, and permitting the proceeds of the litigation to he distributed among those entitled to the personal property of the decedent) which some of the provisions of the act seem to require; thereby giving portions to persons who confessedly .were not injured, and upon whose behalf no recovery could be had, to the injury of those who suffered such injury as was recovered for.
The greater number of the cases discussing the question ■deny the dual right of recovery (28 Am. Law Reg. [ N. S.] 528, 577); and several cases sustain the proposition that, in case death results from the wrongful act before judgment, the death act, and not the survival act, must be relied upon, as contended here. The various cases in the different States arise on varying statutes, and are supported by different reasons; but, as already said, they generally concur in holding that there is a single remedy, and they are not so uniform in holding that death deprives the representatives of a right of action under the survival act, and confers a right to another action, for a different ground and measure of damages, upon one or several of their number, to the exclusion of some. If we are to sustain the contention that the death act is exclusive, it *362must be by holding that it repeals by implication so much of the survival act as before the enactment of the death, act applied to and supported actions by representatives for rights of action which accrued to persons injured through assaults and batteries, and that the amendment, whereby personal injuries caused by negligence were added, falls within the same rule, and was not 'intended to apply to cases where death resulted from the injury; thus ingrafting upon the statute an exception not expressed, and which clearly was not intended when the first statute was passed. This means that there can be no survival of an action in the cases where death ultimately results from the wrong. It would be lost by death, not only where there are representatives to suffer by the death, and who may therefore recover for their pecuniary injury, but also where there is no pecuniary injury to any one through death, in which case all right of action would be lost; and this rule would go so far as to put an end to pending suits, at whatever their stage before verdict, and notwithstanding the fact that large sums had been expended, which would be lost to the estate. The case of Indianapolis, etc., R. Co. v. Stout, 53 Ind. 143, so holds.
I am of the opinion that these two acts are to be construed together; that they were designed to enlarge, rather than to dimmish, the rights of recovery; and, as held of the later act in Merkle v. Township of Bennington, 58 Mich. 158 (55 Am. Rep. 666), that they are both remedial. I doubt if the death act was intended to prevent the survival of actions, though it is not so clear thdt it was intended to permit a recovery on both theories, or to allow an election of remedies, which the courts very generally deny. Indeed, I feel confident that such was not the intention.
There is one view of the law that might reconcile these-two acts without doing violence to either, and give a definite and certain rule. It is, that where the person is injured, and lives after the transaction, a right of action ac*363crues to him, which survives in case of his death before judgment, and that in such case the death act has no ap_ plication. But, if the person is killed outright, no right of action could accrue to him, therefore none could survive, and consequently the death act would necessarily furnish the only relief. Some cogent reasons suggest themselves for this view, if we consider the rule at common law, and the nature of the statutes. At common law, rights of action growing out of torts did not survive, and there was no recovery allowed for causing death. Both were considered to be against public policy. That was the rule in Michigan until the legislature modified it by permitting survival in certain cases of tort. ’ This did not thereby change the law as to recovery for causing death in any case, which we may assume to have been still considered against public policy. And, if a person was instantly killed, it will probably not be contended that the representatives would take a right of action under this act; for how could it be, when, by reason of the simultaneous wrongful act and death, no right of action could accrue to the deceased. But later an act was passed modifying that rule also. This was not a sweeping act. The matter was approached cautiously, and with evident reverence for the rule of public policy. The widow and next of kin were recognized as sufferers by the death of a husband and relative, and it would have been easy to give to each a right of action for the loss or injury occasioned by death. But this was not done. The right of action was carefully limited to cases where a direct pecuniary injury could be shown. If it had stopped here, it might have existed in all such cases where death followed as a result, and whether a recovery had been had by the deceased or not, and notwithstanding the survival of his right of action if there had not been a recovery by him. But it did not stop there. It was limited to cases where the act, neglect, or default would have entitled the deceased to maintain an action and recover, but for the death. Manifestly, had death not been immediate, an action would have accrued, *364which might have been maintained and recovery had by the deceased, if he should live long enough; and, if not, then by his representatives, under the survival act then existing. But, on the other hand, if death was instantaneous, a right of action could not accrue to him, though it would have done so, as we have already seen, had he lived long enough to suffer pain or injury of any kind.
Now let us look at the act. "What cases are there in which the representatives may recover for death? Is it not in those cases where the act would have given to the deceased a right of action, had he not died simultaneously with the act, but which did not and could not on that account accrue to him? See Tiff. Death Wrongf. Act, §§ 73-75, inclusive, and cases cited; 28 Am. Law Reg. (N. S.) 393, 394, and cases cited. Whatever maybe indicated by these authorities as to actions by administrators where death was instantaneous, under the various statutes, it does not seem to be contended that a right of action could accrue to a man who was stricken instantly dead by the wrongful act. Is it not plain that the survival act was impotent to afford relief in such cases, and that the death act applied to such cases? Our attention has been called to no case where it has been held that the death act does not cover such a case. But, while this may account for the enactment of the death act, it does not necessarily follow that such act is not broad enough to cover cases where death was not immediate, but it seems quite as probable that the legislature should have intended this construction, as that it was designed to supplant the survival act in so important a class of cases as those based upon negligent injuries resulting in death; and it is not strange that defendant should not have raised and insisted upon the construction under discussion, i. e., that, when death has ensued after the lapse of time, recovery could only be had under the survival act, thereby subjecting it to a judgment for all the pain and suffering of the deceased.
A majority of the courts that have considered these *365questions have found in these statutes (for they are usually associated in the statutes of the different States) that which precludes the double remedy, and which makes the recovery by the deceased a bar to a subsequent action under the death act. The strongest arguments against the construction suggested herein are that other courts have not usually discussed this theory, and have applied the remedy under the death act to cases when death was not immediate, which it must be admitted has been often done,— a practice which is clearly inconsistent with this view. Our attention has not been called to any case where the reasonableness of such a construction has been denied. On the other hand, it is said by Ross, C. J., in Legg v. Britton, 64 Vt. 652, that:
“In Maine, and some other States, it is held that the acts of those States, framed after Lord Campbell’s act, give a right of action only when instant death follows the injury.”
See State v. Maine Cent. R. Co., 60 Me. 490; State v. Grand Trunk Ry., 61 Me. 114 (14 Am; Rep. 552).
It is possible that this construction is foreclosed by decisions heretofore made by this court, and it is unnecessary to decide the question, because the jury found a verdict for the defendant upon .the count based upon this statute; but, to my mind, the foregoing are conclusive reasons for believing that it was not the intention of the legislature to give the double remedy.
In my opinion, the judgment should be affirmed.