(dissenting):
I cannot assent to either the reasoning or the conclusion announced by the majority of the court in the opinion just delivered. It appears from the record^ that plaintiff's decedent, George S. Mason, sued the defendant in a commissioners' court for wrongfully ejecting him from a car on its road, claiming $300 damages. At the trial he recovered judgment for $200. The defendant appealed the case to the district court, but before the-case was reached for trial in that court the plaintiff died, and his administrator, the present plaintiff, was. substituted in his stead, with the consent of counsel for defendant. Afterwards the defendant moved the-court to dismiss the action, because it had abated by the death of the original plaintiff, and at the same time-counsel for plaintiff asked leave to amend his complaint^ and allege that the decedent's death was caused by the wrongful act of the defendant in ejecting him from its, car. Leave to amend was denied, and the cause dismissed by order of the court. Section 3187, 2 Comp. Laws 1888, provides that an action does not abate by the death of either party if the cause of action survives or continues, and that in case of the death of a party the court may allow the action to be continued by or against his representatives. If, then, the cause of action in this; case survived or continued, the action did not abate by the death of the plaintiff; but, if the cause of action, did not survive or continue, then the action did abate-by plaintiff’s death. What, then, is the cause of action-in this class of cases? Is it the wrongful or negligent act which produced the death, or is the death the cause-of action, or does it consist of both the wrongful act and the death, as held in the majority opinion? The statute *85•declares the wrongful or negligent act must be such that the injured party could have maintained an action therefor, if death had not ensued. The cause of action, then, for the wrongful act must have existed and been vested in plaintiff during his life-time. He might, therefore, if he had lived, have prosecuted an action for the wrongful act to a final determination, or he might have accepted satisfaction and executed a release, and in either case, as there could be but one cause of action, or one satisfaction, for the same wrongful act, no further right of action could be maintained, notwithstanding his .subsequent death from his injuries. Dibble v. Railroad Co., 25 Barb. 183; Littlewood v. Mayor, 89 M. Y. 25; Read v. Railway Co., L. R. 3 Q. B. 555; 2 Redf. R. R. (6th ed.) 294; 1 Shear. & R. Neg. (4th ed.) § 140; Cooley, Torts, 264; Freem. Judgm. § 241.
It will be observed that the damages which the administrator may recover are not given specifically for the ■death, but for the wrongful act “notwithstanding the ■death/' and when, and only when, damages could have been recovered by the injured party during his life-time. If the defendant be guilty of no fault, or if the decedent was guilty of such contributory negligence that he could not have recovered for his injuries if he had lived, his personal representative cannot recover for his death. 1 .Shear. & R. Meg. (4th ed.) § 140; Cooley, Torts, 264; 2 Redf. R. R. (6th ed.) § 195. How, then, can it be said that the death is the cause of action instead of the wrongful or negligent act which produced the death? It is true that, but for the- death, the personal representative or heir could not maintain the action, but this fact does not make the death the cause of action. If the defendant had owed the decedent on a promissory note at *86the time of his death, the death would be equally necessary to give a right of action to the administrator on the note, but that would not make the death the cause of action in a suit by him on the note.
Sections 2961, 2962, of our statute (2 Comp. Laws 1888,. р. 179) are substantially the same as the English statute-commonly called “Lord Campbell's Act,” (9 and 10 Viet.. с. 93,) and which, with some modifications, has been, adopted in most of the States of this Union. In Cooley on Torts, (page 264,) the learned author, speaking of this statute, says:
“It is seen, on perusal of this statute, that it gives an action only when the deceased himself, if the injury had-not resulted in his death, might have maintained one.. In other words, it continues for the benefit of the wife,, husband, etc., a right of action which, at the common, law, would have terminated at the death, and enlarges-its scope to embrace the injury resulting from the-death.”
The case of Horton v. Daly, 106 Ill. 131, was like the-case at bar in all material respects. The plaintiff in that case obtained a verdict and judgment against the defend-' ant for personal injuries caused by defendant's negligence. The defendant appealed, and the case was reversed and a new trial granted; and before the second trial the plaintiff died, and his administrator was substituted, and counsel for the defendant, as in the case at. bar, moved the court to dismiss the case because the action had abated by the death of'the plaintiff, which motion was overruled. The Supreme Court sustained the. ruling of the lower court, and held that, there being *87nothing on the face of the record showing of what the deceased died, the question of the survivorship of the cause of action could not he raised by motion, and intimates that it could only be done by plea in abatement. The court in that case, under a statute substantially like the Utah statute, held that the negligent act and not the death was the cause of action, that it survived to the administrator, and that the administrator occupied the same position he would have occupied had the suit not been begun until after the death of the decedent. The only causes cited in the opinion of the chief justice, in support of the views of the majority of the court as to the survivability of actions of this kind, are Whitford v. Railroad Co., 28 N. Y. 465, and Hegerich v. Keddie, 99 N. Y. 258, 1 N. E. Rep. 787. In the first of the above-mentioned cases, it was held by a majority of the court that the cause of action was the death and not the wrongful act that produced it. Chief Justice Com-stock delivered a dissenting opinion, which was concurred in by Justice Hoyt, in which he maintained with great force and clearness that the wrongful act and not the death was the cause of action.
The case of Hegerich v. Keddie, above referred to, was an action by the administrator of the estate of the injured party against the executor of the estate of the wrongdoer. The court, while . holding that the statute, which is similar to ours, creates a new cause of action, in that it authorizes an action to be maintained by personal representatives against a wrong-doer, whose act or negligence has produced death, which could not be done at the common law, says that the action “ is founded upon the wrongful act of the party causing the death, and gives a right of action therefor to the representatives of the deceased for the pecuniary consequences suffered by *88the husband, wife, or next of kin from such wrongful act.” The court also says: “The cause of action is obviously the wrongful act, and the pecuniary injuries .resulting afford simply a rule to determine the measure of damages. However much the husband, widow, or next of kin may suffer pecuniarily by the act causing death, it constitutes no cause of action, independent of evidence that it was occasioned by the wrongful or negligent conduct of another.” Again, the court say: “It will be observed also that the statute, although creating a new cause of action, and passed for the express purpose of changing the rule of the common law in respect to the survivability of actions, and conferring a right upon representatives which they did not before possess, does not undertake either expressly or impliedly to impair the equally stringent rule which precluded the maintenance of such actions against the representatives of the offending party.”
It is thus seen that, of the two cases referred to in support of the doctrine held by the majority of the court, only one of them supports it, and that by a divided court, while the other and later case in the same court announces a contrary doctrine, and supports the views expressed in this opinion. Before the adoption of this statute (sections 2961, 2962, 2 Comp. Laws 1888) a party injured by the wrongful or negligent act of another could recover for his injuries under the common law, but, if he died from his injuries without having done so, his cause of action died with him, and did not survive or continue to his personal representatives or heirs. The very object, and in fact the only object, of the statute was to change this common-law rule, and create a survivorship of the cause of action in favor of his personal representatives, by taking away the immu*89nity which his death afforded the wrong-doer; and; under the sections above referred to, his personal representative could maintain an action against the party whose wrongful or negligent act caused his death, and this right was extended to the heir by section 3179, adopted at a later period. Upon both reason and authority, the wrongful act which causes the death constitutes the cause ■of action in this class of cases, and under the statute survives or continues to the" personal representative or heir. The original plaintiff in this case having begun his action against the defendant for a wrongful act, which it is. alleged resulted in his death after the action was begun, and his administrator having been substituted as plaintiff, the cause should have proceeded to trial. Under section 3187 of our statute, which provides that an action does not abate by the death of a party where the cause of action survives or continues, but may be -continued by his -personal representatives, this action did not abate, and should not have been dismissed by reason •of the death of the plaintiff.