husband had sued for damages for the injury, and died pending the action. By a statute in North Carolina, "no action, 15 * * * except suits for penalties and for damages merely vindictive, shall abate by reason of the death of either party."10 §7022. View that Amount of Damages is Limited to Lifetime of Deceased Beneficiary.-In New Jersey the courts take the position that, while the action does not abate, the damages recoverable will be limited in duration and extent to the lifetime of the beneficiary.17 § 7023. Death of Wrong-Doer. The provision of the Texas statutes1s for the survival of these causes of action when an action is commenced during the lifetime of the person at fault, is inapplicable where no action was commenced during the lifetime of such wrongdoer 19 Under the North Carolina statute,20 it has been held that an action for the death of a person would not abate on the death of the defendant, because the damages in such a case are confined to the amount of pecuniary injury, and therefore it is not an action for "damages merely vindictive."21 In most jurisdictions, however, the action abates on the death of the wrong-doer.22 §7024. Death of Administrator Bringing the Action.-On the death of the administrator who instituted the action, the action is not to be continued by the personal representative of the deceased administrator, but by an administrator newly appointed for the estate of the person wrongfully killed.23 "Edwards v. Gimbel, 202 Pa. St. Russell v. Sunbury, 37 Ohio St. 372; 30; s. c. 51 Atl. Rep. 357. 1 N. C. Code 1883, § 188. s. c. 41 Am. Rep. 5231. That the action cannot be brought after the "Cooper v. Shore Elec. Co., 63 N. death of the wrong-doer, see Hamil J. L. 558; s. c. 44 Atl. Rep. 633. 3026. ton v. Jones, 125 Ind. 176; s. c. 25 N. E. Rep. 192; Hegerich v. Keddie, 99 N. Y. 258; s. c. 52 Am. Rep. 251; "Johnson v. Farmer, 89 Tex. 610; 1 N. E. Rep. 787; Moriarity v. BartE. c. 35 S. W. Rep. 1062. *See ante, § 7021. Collier v. Arrington, Phill. L. (N. C.) 356. See also, Hudson v. Adin, 4 Ohio Dec. 211; s. c. 1 Clev. L. Rep. 122. * Moe v. Smiley, 125 Pa. St. 136; 8. c. 3 L. R. A. 341; 17 Atl. Rep. 228; lett, 99 N. Y. 651; s. c. 1 N. E. Rep. 794; Green v. Thompson, 26 Minn. 500; s. c. 5 N. W. Rep. 376. Contra, see Davis v. Nichols, 54 Ark. 358; s. c. 15 S. W. Rep. 880. 23 Hodges v. Webber, 65 App. Div. (N. Y.) 170; s. c. 72 N. Y. Supp. 508. ARTICLE VI. COMPROMISE AND RELEASE. SECTION SECTION 7027. Power of representative to 7029. Contracts for release from lia compromise and settle claim. 7028. Settlement with injured per son in his lifetime. bility for future injuries Relief association. 7030. Compromise or release by beneficiary. § 7027. Power of Representative to Compromise and Settle Claim. -The personal representative of the deceased person may compromise and settle the claim against the defendant either before or after the action is brought; and in Minnesota this settlement does not require the approval of the next of kin or the probate court. The courts of New Jersey hold against the validity of a release of a cause of action for death made by a foreign administrator who is not appointed at the instance of the widow or next of kin, and not made with their approbation but in pursuance of a fraudulent design on the part of the defendant to have the cause released. A release by the personal representative, to be effective, must be made at a time. when he is qualified to act as such representative. Thus, a release executed before his appointment is ineffective and constitutes no defense to an action instituted by him after his appointment and qualification.* $7028. Settlement with Injured Person in his Lifetime.-The right of action in the personal representatives, it has been held, depends not only upon the character of the act from which death ensued, but also upon the condition of the decedent's claim at the time. of his death. If the claim was in such a shape that he could not then have enforced it had death not ensued, the statute gives the executors no right of action, and creates no liability whatever on the part of the person inflicting the injury. Therefore, where, in an action by the personal representatives of a person to recover damages for his death, caused by the wrongful act of the defendants, it was shown that the defendants settled with the deceased in his lifetime, and paid him the amount of his claim on account of the injury, it was 1 Foot v. Great Northern R. Co., 81 Minn. 493; s. c. 84 N. W. Rep. 342; 52 L. R. A. 354; Baltimore &c. R. Co. v. Hottman, 25 Ohio C. C. 140. 2 Foot v. Great Northern R. Co., 81 Minn. 493; s. c. 84 N. W. Rep. 342; 52 L. R. A. 354. 3 Pisano v. Shanley, 66 N. J. L. 1; s. c. 48 Atl. Rep. 618. 4 * Stuber v. McEntee, 142 N. Y. 200; Snedeker v. Snedeker, 47 App. Div. (N. Y.) 471; s. c. 63 N. Y. Supp. 580; s. c. aff'd, 164 N. Y. 58; 58 N. E. Rep. 4. See post, § 7030, where the release was executed by a sole beneficiary afterwards appointed administrator. 5 held that this would bar the plaintiff's action. Such a release is invalid if secured by unfair means. Thus, in a case where the deceased had released the defendant from all liability, while mentally incompetent, for a certain amount of money, the use of the money by a beneficiary was held not a conclusive ratification of the release." $7029. Contracts for Release from Liability for Future InjuriesRelief Association. Contracts entered into between master and servant releasing the master from liability for prospective injury or death are not, under the death statutes, binding on the beneficiaries, who are strangers to such contracts, and will not prevent a recovery for the benefit of the next of kin of the deceased." This principle finds its most frequent application in cases where the deceased was a member of a relief association conducted by his employer; and there is great uniformity of holding to the effect that payment by a railroad company to an employé's widow of the amount of a relief certificate, and her acceptance thereof, will not release the company from liability for willfully causing the employé's death, though the application for membership provided that the payment and acceptance of benefits should operate as a release from all claims for damages." $7030. Compromise or Release by Beneficiary.-An unqualified release by a single beneficiary is effective only as to the claim of such beneficiary, and will not bar an action in the behalf of other 'Southern Bell Tel. &c. Co. v. Cassin, 111 Ga. 575; s. c. 36 S. E. Rep. 881; Dibble v. New York &c. R. Co., 25 Barb. (N. Y.) 183; Hill V. Pennsylvania R. Co., 178 Pa. St. 223; s. c. 35 L. R. A. 196; 39 W. N. C. (Pa.) 221; 35 Atl. Rep. 997; Price v. Railroad Co., 33 S. C. 556; s. c. 12 S. E. Rep. 413; Brown v. Chattanooga Elec. R. Co., 101 Tenn. 252; 8. c. 47 S. W. Rep. 415. See Whitford v. Panama R. Co., 23 N. Y. 465, 484; Read v. Great Eastern R. Co., L. R. 3 Q. B. 555. In an action by a widow as administratrix for the death by negligence of her husband, in which a release signed by him is pleaded in bar and is claimed to have been obtained by imposition and duress, she may testify as to his financial condition during his illness, and that she has heard him say that he would never sign the release, that he needed his salary but would starve before he would sign such release: Price v. Richmond &c. R. Co., 38 S. C. 199; s. c. 17 S. E. Rep. 732. Missouri &c. R. Co. v. Brantley, 26 Tex. Civ. App. 11; s. c. 62 S. W. Rep. 94. Ta See Vol. IV, § 3853. 8 Adams v. Northern Pac. R. Co., 95 Fed. Rep. 938; Illinois &c. R. Co. v. Cozby, 69 Ill. App. 256; Maney v. Chicago &c. R. Co., 49 Ill. App. 105. "Cowen v. Ray, 108 Fed. Rep. 320; s. c. 47 C. C. A. 352; Chicago &c. R. Co. v. Wymore, 40 Neb. 645; s. c. 58 N. W. Rep. 1120; McKeering v. Pennsylvania R. Co., 65 N. J. L. 57; s. c. 46 Atl. Rep. 715. Deceased, who was killed on the defendant's railway, was a member of a relief department conducted by the company, and pledged his certificate as security for a loan. It was held that the assignment of the certificate did not discharge a right of action by deceased's widow for his death, since the right to sue was not assigned: Cowen v. Ray, 108 Fed. Rep. 320; s. c. 47 C. C. A. 352. statutory beneficiaries.10 A widow entitled in the first instance to all damages recovered for the death of her husband has power to settle for such damages;11 but where the action is for the benefit in part of other beneficiaries, she is without power to compromise their claims.12 In a case where the sole beneficiary accepted a sum of money in settlement of his claim for damages, it was held that his subsequent appointment as administrator of the estate of the deceased related back. to the death of his intestate, so as to validate the settlement made and render it as effectual as though made after the appointment.13 ARTICLE VII. JUDGMENT AS BAR TO ANOTHER ACTION. SECTION 7033. When a judgment will bar a subsequent action. 7034. Recovery by injured person in his lifetime. SECTION 7035. Pendency of an action under an entirely different right. § 7033. When a Judgment will Bar a Subsequent Action.-Where death is caused by the wrongful act, neglect, or default of another, two causes of action may arise: one in favor of the decedent, for his loss and suffering resulting from the injury in his lifetime; the other founded on his death, or on the damages resulting from his death to his widow and next of kin. Both actions are to be prosecuted, in point of form, in the name of his personal representative; but the damages in the two suits are given on entirely different principles, and for different purposes.1 Yet it has been held in Kentucky that an action for the loss of the life of the deceased will bar an action by his personal representative for the mental and bodily suffering before his death, caused by the same acts or negligence which caused his death. A father, as administrator under the statute, may re 10 Pittsburgh &c. R. Co. v. Hosen, 152 Ind. 412; s. c. 53 N. E. Rep. 419; Oyster v. Burlington Relief Dept., 65 Neb. 789; s. c. 91 N. W. Rep. 699; 59 L. R. A. 291. 11 Prater v. Tennessee Producers' Marble Co., 105 Tenn. 496; s. c. 58 S. W. Rep. 1068; Smalling v. Kreech (Tenn.), 46 S. W. Rep. 1019; Stephens v. Nashville &c. R. Co., 10 Lea (Tenn.) 448; Schmidt v. Deegan, 69 Wis. 300; s. c. 34 N. W. Rep. 83. 12 Southern Pac. Co. v. Tomlinson, 163 U. S. 369; s. c. 41 L. ed. 193; 16 Sup. Ct. Rep. 1171. 13 Doyle v. New York &c. R. Co., 66 App. Div. (N. Y.) 398; s. c. 72 N. Y. Supp. 936. 1 Needham v. Grand Trunk R. Co., 38 Vt. 294. See Barley v. Chicago &c. R. Co., 4 Biss. (U. S.) 430; also, opinion of Norton, J., in Proctor v. Hannibal &c. R. Co., 64 Mo. 112, 122. 2 Hansford V. Payne, 11 Bush (Ky.) 380; Conner v. Paul, 12 Bush (Ky.) 140. See also, Lynch v. Da. vis, 12 How. Pr. (N. Y.) 323. So, a husband's right of action for the loss of his wife's society on account of injuries which resulted in her death, is barred by a recovery of judgment by him as her personal representative in an action for her death, brought under Kentucky Gen. Stat., ch. 57, § 1, for the benefit of her estate, which is more advanta cover damages for the death of his infant son, where the recovery is for his exclusive benefit, and he may proceed for and recover his whole damages, including the loss of his son's services during minority. But the recovery will be a bar to another action by the father, as such, it being assumed that he has a right of action independent of the statute. However, a judgment recovered by the administrator, under the act, for the death of the deceased, would be no bar to a subsequent action by the administrator to recover damages for injuries, arising from the same cause, to his personal estate. Nor is an action by the father of a minor child for loss of his services during minority, barred by a judgment in favor of the personal representative of the child for his death; since in the latter case the injury to the estate is limited to the time subsequent to attaining majority. The California statute, which permits an action to be brought either by the personal representative or by the heirs, does not authorize action by both classes of parties; and hence a recovery by either party is a bar to an action by the other. Since a recovery does not become a part of the estate of the deceased, plainly the final settlement of the estate will not operate as a bar to an action in favor of the beneficiaries." $7034. Recovery by Injured Person in his Lifetime.—A recovery by an injured person in his lifetime of damages for the injury, will effectually bar an action for his death resulting from such injuries;8 but not where the action, though commenced, has not proceeded to a judgment. In Indiana, since, by statute, an action for damages for an geous to him than his common-law right of action for loss of her society: Louisville &c. R. Co. v. McElwain, 98 Ky. 700; s. c. 18 Ky. L. Rep. 379; 34 L. R. A. 788; 3 Am. & Eng. R. Cas. (N. S.) 309; 34 S. W. Rep. 236. 'McGovern v. New York &c. R. Co., 67 N. Y. 417. Barnett v. Lucas, I. R. 6 C. L. 247; affg s. c. I. R. 5 C. L. 140. Where a passenger on a railway train was injured by an accident, and, after an interval, died, it was held that his executrix might reCover against the railway company, on the breach of contract, the damage to his personal estate arising in his lifetime from medical expenses and loss occasioned by his inability to attend to business: Bradshaw v. Lancashire &c. R. Co., L. R. 10 C. P. 189; s. c. 44 L. J. (C. P.) 148; 31 L. T. (N. S.) 847. A judgment under Mass. St. 1887, ch. 270, for personal injuries suffered by an employé, is no bar to a subsequent action, under Pub. St. Mass., ch. 112, § 212, for death caused by such injuries: Clare v. New York &c. R. Co., 172 Mass. 211; s. c. 51 N. E. Rep. 1083. Hedrick v. Ilwaco R. &c. Co., 4 Wash. 400; s. c. 54 Am. & Eng. R. Cas. 45; 30 Pac. Rep. 714. Hartigan v. Southern Pac. Co., 86 Cal. 142; s. c. 24 Pac. Rep. 851. 'International &c. R. Co. v. Culpepper, 19 Tex. Civ. App. 182. See Brown v. Chicago &c. R. Co., 102 Wis. 137; s. c. 77 N. W. Rep. 748; 78 N. W. Rep. 425; Hubbard v. Chicago &c. R. Co., 104 Wis. 160; s. c. 80 N. W. Rep. 454. 8 Hecht v. Ohio &c. R. Co., 132 Ind. 507; s. c. 32 N. E. Rep. 302; 54 Am. & Eng. R. Cas. 75. 9 International &c. R. Co. V. |