I am impelled to dissent from the majority opinion in this case for the reason that in my opinion the decision runs counter to the practice and decisions of this court since Laws 1898, chapter 65, went into effect. Under the present law (section 501, Hemingway’s Code; chapter 214, Laws of 1914) it is distinctly provided in the first part of the section.
“Whenever the death of any person shall be caused by any real wrongful or negligent act, or omission, or by such unsafe machinery, way or appliances as would, if death had not ensued, have entitled the party injured, or damaged thereby, to maintain an action and recover damages in respect thereof, and such deceased persons shall have left a widow or children, or both, or husband, or father, or mother, or sister, or brother, the person or corporation, or both, that would have been liable if death had not ensued, and the representatives of such person shall he liable for damages, notwithstanding the *97death, and the fact that death, was instantaneous shall, in no case, affect the right of recovery.....In such action the party or parties suing shall recover such damages as the jury may determine to be just,' taking into consideration all the damages of every land to the decedent and all damages of every kind to any and all parties interested in the suit. This section shall apply to all personal injuries of servants and-employees received in the service or business of the master or employer, where such injuries result in death. . . . If the deceased have neither husband, or wife, or children, or father, or mother, or sister, or brother, then the damages shall go to the legal representative, subject to debts and general distribution, and the fact that the deceased was instantly killed shall not affect the right of the legal representative to recove!.”
A careful reading of the statute, it seems to^e, discloses the purpose of the legislature to change the rule announced in the opinions quoted in the main opinion, especially the case' of I. C. R. Co. v. Pendergrass, 69 Miss. 425, 12 So. 954, and McVey v. I. C. R. Co., 73 Miss. 487, 19 So. 209, and Beckman v. Ga. Pac. Ry. Co. (Miss.), 12 So. 956, which decisions construed the statute as it existed prior to the Act of 1898 above referred to. It is difficult to understand the reasoning of the majority opinion in view of the fact that if there is entire failure of the parties related to the deceased named in the statute:
“Then the damages shall go to the legal representative, subject to debts and general distribution, and the fact that the deceased was instantly killed shall not affect the right of the legal representative to recover.”
The cases relied on in the majority opinion are predicated upon the fact that there was no injury to the deceased where death was instantaneous. The present statute clearly intends to change the law because in each part of the statute if is provided that the fact that death *98is instantaneous shall not affect the right to recover. As to the relatives named who are given the right to sue, they have the right not only to recover their damages where death is instantaneous, but also to recover the damages to the decedent in that case. The latter part of the statute expressly carries out the idea that the deceased’s expectancy is recoverable, because where death is instantaneous and he has no dependents or immediate members of his family, the damages are to be recovered for general distribution, and are subject to. administration; clearly meaning that if none of the relatives named in the statute exist that the .personal or legal representative shall sue for and collect the damages, subject to the right of creditors, and, after the creditors are satisfied, to distribute the balance amongst the heirs at law, whoever they may be, and however distant they may be. If there are no creditors the action remains in the legal representative subject to distribution amongst his heirs at law, however remote they may be.
It would seem in the absence of any decision that this language is too clear to be misunderstood, but in numerous cases the expectancy has been recovered and the judgment affirmed by this court, and I thought it was universally understood that the expectancy of the deceased w;as recoverable by the parties named in the statute regardless of their own expectancies. And naming* the damages recoverable in the case of Cumberland Tel. & Tel. Co. v. Anderson, 89 Miss. 732, at page 744, 41 So. 263, the court expressly held that, in addition to such damages named to the parents, they could recover "also whatever sum the son might have recovered as the present value of his own expectancy.” This holding was in no wise disturbed in the case of New Deemer Mfg. Co. v. Alexander, 122 Miss. 859, 85 So. 104, but we simply modified the opinion in the Anderson case, supra, by holding that the necessary living expenses of the *99deceased during his expectancy must be deducted from the expectancy as there was no property from which any gift or income could be derived other than the earning power of the deceased. That case held that the value of the expectancy, less the said necessary living expenses, was a recoverable element. In G. & S. I. R. Co. v. Boone, 120 Miss. 632, 82 So. 335, it'was expressly held in the plainest language that the expectancy of the deceased, was a recoverable element, additional to the loss of association, etc. • The same principle was recognized in Hines, Agent, v. Green, 125 Miss. 476, 87 So. 649. The net expectancy less the necessary living expenses was there stated to be the basis of the recovery, because as in the Alexander case, supra, it was explained that the cost of living* must be taken from the net expectancy during the period of the expectancy, and that the plaintiffs were entitled to recover the value of such expectancy as damages for the wrongful death.
In L. & N. R. R. Co. v. Garnett, 129 Miss. 795, 93 So. 241, this rule, was again announced. In the Garnett case the suit was brought by the father and mother and brothers of the deceased who died leaving neither wife nor children nor descendants of children. The court announced at page 807 and 808 (93 So. 243), that the measure of recovery is the net present cash value of what the deceased would have earned during his life expectancy, and not the gross amount which the instruction authorized the jury to find. In other words, in this last ease was presented exactly a case where the expecff ancy was the thing being sued for. It does not appear whether the brothers were older or younger than the deceased, but certainly the father and mother were older, and the same right of action would have existed in a legal representative had there been none of the relatives mentioned in the statute. The legal representative would have sued for and recovered the life expectancy. As stated in the Alexander case, supra, *100where the deceased has no property from which expected gifts and support could be received the recovery is rooted in the expectancy of the deceased. If the deceased had no injury in the case of instant 'death, there would have been nothing for the legal representative to sue for or recover, and it would make the language of the legislature giving the right regardless of the fact that death was instantaneous absurd and nonsensical. How could a legal, representative maintain an action where death was instantaneous and there was no suffering, if there were no expectancy to be sued for? It would seem to be sounder reasoning to' say that the injury to the deceased is the expectancy,, and the pain and suffering and expenses incurred by him in procuring medical treatment, etc., and that the right of the other relatives, or th'eir damages, would be loss of association, etc., and the loss of the right of support. In the absence of a provision in the statute giving them the right to sue for the injuries to the deceased, they could have only sued for such rights as they would have had in the life of the. deceased during their own lives if their expectancy were less than that of the deceased.
The majority opinion, it seems to me, entirely ignores the latter clause ingrafted on the statute by chapter .65, Laws of 1898. The opinion is in error also in stating that under the death statutes in'the Code of 1906 and prior acts, all causes of action which might have theretofore existed for any injuries, whereby the death of the party was produced, were united in one suit; and that it was provided that the designated class of representatives might recover notwithstanding the death in no case affects the recovery. The action of,the next of kin and the personal representative remained separate hntil the passage of the law of 1914 as will appear from the case of Hamel v. Southern Ry. Co., 108 Miss. 172, 66 So. 426, 809.
It seems to me it is a perfectly reasonable thing for the legislature to provide by law that where one person *101wrongfully kills another that he was to be liable for the value of the life so destroyed, and it was the purpose of enacting this statute to protect human life by imposing such responsibility upon the person who wrongfully took it. The statute is beneficial and ■ remedial, and calculated to preserve human life, and should not be pared away^hy construction.
Holden, J., joins in this dissent.