The defendant in error contends that the recovery under the Federal Employers’ Liability Act for the death of the husband and father bars the present action. The contention is meritorious.
The decedent was survived by his widow and two minor children. The F. E. L. A. (45 U. S. C. A., Sec. 51) gave the right of action against the railroad to the personal representative of the decedent for the benefit of the widow and children. The Georgia statute vests the right of action in the case of wrongful death of a husband and father in the widow (Code § 105-1302) to be held by her subject to the law of descents, as if it were personal property descending to the widow and children from the deceased. Code § 105-1304. So, under the facts of this case, the right of action which would have accrued under the State statute would have been for the benefit of the same persons as benefited from the action under the Federal statute.
The amount of recovery under the F. E. L. A. is so nearly equivalent to that recoverable under Georgia law and is so substantially based on the same principal factor, to wit, earning capacity, that recovery under both laws would amount to a double recovery for the same wrong, despite the fact that under State law the recovery could theoretically be larger than the recovery under the F. E. L. A. Compare 45 U. S. C. A., Sec. 51, Notes 1553-1557, pp. 842-847; Central of Ga. Ry. Co. v. Goens, 30 Ga. App. 770 (7) (119 S. E. 669) with Code § 105-1308 catchwords “Measure of damages.”
There can be only one recovery for damage by joint tortfeasors, (Donaldson v. Carmichael, 102 Ga. 40, 42, 29 S. E. 135), and this applies even though the joint tortfeasors could not be joined in the same action under the Federal statute. Griffin Hosiery *189Mills v. United Hosiery Mills, 31 Ga. App. 450 (120 S. E. 789); Friedlander v. Feinberg, 27 Ga. App. 808 (2) (110 S. E. 26). As was stated in Southern Ry. Co. v. Allen, 88 Ga. App. 435 (77 S. E. 2d 277) it would be monstrous to allow a recovery for a wrongful death under the State statute from one joint tortfeasor when there has been a recovery for the same death under the Federal statute from the other joint tortfeasor. The plaintiff had the option of suing the railroad by itself under the Federal statute or of suing either or both the railroad and the trucking company under the State statute (Southern Ry. Co. v. Allen, supra), and since she has exercised that option by suing the railroad and recovering under the Federal statute, she cannot now sue the trucking company under the State law.
The court did not err in sustaining the general demurrer to the amended petition and in dismissing the action.
Judgment affirmed.
Gardner, P. J., Toionsend, Carlisle and Nichols, JJ., concur. Quillian, J., dissents.