I do not concur in the holding that in cases where a parent is injured through the fault of another and death finally results from such injuries, his children have only one cause of action against the person by whose fault the injury happened. I think they have or may have two separate and distinct causes of action, one for the amount of damage which the deceased could have recovered had he survived, and another for the damage "sustained by them by the death of the parent." C.C. art. 2315.
It is true that the origin of the right or cause of action is the same in each case, that *Page 148 is, the negligent act of the person who caused the injury and resulting death. But when a person is injured through the fault of another and is thereby entitled to recover any element of damages, the right and cause of action which he would have had if he had survived is inherited by his children in case of his death. They inherit that which accrued to the deceased prior to his death and the right to recover it. In other words, they inherit that which belonged to the deceased at the time of his death. The right to recover in such cases accrues to the descendants, not because of any injury which they have sustained by the fault of another, but by virtue of their inheritance of that which had accrued to their ancestor on account of the injuries which he had sustained.
The right of action which an injured person has to recover damages from a person who negligently injures him and the amount due him therefor constitute an asset of his succession in case of his death. This asset is inherited by his survivors. The right to recover in this instance gives right to a separate cause of action granted by the Code. This is not a cause of action to recover damages accruing to the heirs because of the fault of another, but a cause of action to recover that which would have been due the injured person had he survived. This right of action is expressly granted to the survivors by the Code.
The survivors, however, have another cause of action; that is, to recover damages which they sustain on account of the death of the deceased. The Code provides in a separate paragraph that: *Page 149
"The survivors above mentioned may also recover the damagessustained by them by the death of the parent." (Italics are mine.)
This right of action has no connection whatever with the right of action to recover that which the heirs have inherited. I think the language of the Code makes that plain. A child may or may not be damaged by the death of the parent; a wife may or may not be damaged by the death of her husband, or a sister by the death of a brother. Whether damage is sustained depends altogether upon the circumstances. If the survivor is in fact damaged by the death of the deceased, he has a cause of action to recover the damage sustained, but that cause of action grows out of the damage which the heir has sustained personally on account of the death of the deceased. This latter is not an inherited right, while the former is.
In the latter case there are or may be as many claims as there are damaged parties, all separate and distinct. Each child has a right and cause of action to recover the amount of damage which he has suffered. The amount which each child may recover depends upon the amount of his damage. One may be entitled to recover nothing, another very little, and still another very much. There is no privity of interest between the heirs, no common cause. No one of the heirs has any interest in the right or cause of action which the Code gives the others.
If the driver of an automobile negligently runs into a crowd and kills six persons, unrelated, each has a separate cause of action against the wrongdoer, notwithstanding these causes of action arise from a single wrong. No one of them would have any interest in *Page 150 the right of the other to claim damages, and for that reason it would hardly be contended that all of them would have to join in the same suit to recover that which was due each merely because the injury to each arose from a single wrong.
I concur in the holding that all those jointly interested in the inherited right of action should be joined in the same suit. There is reason and sound policy to support that ruling. There is but one debt and all those interested therein should join in one action to recover it. I dissented in the case of Reed v. Warren for the reasons stated here, that is, that the survivors have two separate and distinct causes of action and for that reason cannot be compelled to join in the same suit.
I dissent.