the statute, and the personal representatives are entitled to recover damages for the wrongful taking away of the life itself; and therefore it makes no difference whether the injured party was killed instantly or not. Nor does it matter that the damages recovered become assets of the estate, to be administered upon as other personal property of the deceased, and do not go to certain designated persons as provided in Lord Campbell's Act, and in many States of this country. This is but a statutory direction as to the disposition to be made of the damages to be recovered, and does not determine the question as to whether the statute creates a new right of action or is only a survival statute. In the absence of the statute, no right of action for the death exists in favor of any person, and it was clearly competent for the Legislature, in creating this new right, to make such provision as to the disposition of the damages recovered thereunder as it might see proper.

The statutes of the various States which have in substance adopted Lord Campbell's Act differ widely in this respect, and it has never been suggested, so far as we are aware, that for this reason they do not give a cause of action for the death. . . . The statutes of Kansas and Indiana are identical with ours, except that damages are allowed to the extent of $10,000, and must inure to the exclusive benefit of the widow and children, if any, or next of kin. Mr. Justice Brewer, in Hulbert v. City of Topeka, 34 Fed. 510, referring to the Kansas statute, says it

"gives a new right of action; one not existing before; an action which is not founded on survivorship; an action which takes no account of the wrong done to the decedent, but one which gives to the widow or next of kin damages which have been sustained by reason of the wrongful taking away of the life of the decedent. It makes no difference whether the injured party was killed instantly or lived months, whether he suffered lingering pain or not, whether or not he was put to any expense for medical attendance and nursing. None of these matters are to be considered in an action under section 422; and the single question is, how much has the wrongful taking away of his life injured his widow or next of kin? It is an action to recover damages for the death, and in no sense a survival of an action which accrued to the decedent before his death."

. . . The questions determined in the adjudged cases on the right of the personal representatives of one whose death was caused by the wrongful act or omission of another to maintain an action for damages against the latter arose under such dissimilar statutes that the decisions afford but little light upon the interpretation of any particular statute at variance with the one under consideration in the given case, and hence it is useless to attempt any further examination of them at this time. . . .

(2) It is next claimed that the complaint is defective because it does not show that the deceased left surviving him any heirs, legatees, next of kin, or creditors. Under the provisions of Lord Campbell's Act, and statutes which, like it, give a right of action for the death of a person caused by the wrongful act of another for the benefit of certain designated relatives, no action can be maintained at all unless the de

ceased left at least one surviving relative of the class specified, and the complaint must necessarily show that fact. 1 Shear. & R. Neg. § 135; Stewart v. Railroad Co., 103 Ind. 44, 2 N. E. 208. In such case the executor or administrator, in prosecuting the action, is a mere nominal party, who sues for the benefit of the real party in interest; and such damages as he may recover do not go to the estate of the deceased, nor belong to him in his representative capacity, but to the person for whose benefit the right of action is given by the statute. Blake v. Railway Co., 18 Q. B. 93; Bradshaw v. Railway Co., L. R. 10 C. P. 189. The theory is that those entitled to the benefit of the statute have a pecuniary interest in the life of the deceased, and the recovery is to compensate them for the pecuniary loss they have sustained. In short, a new right of action is created for the benefit of certain designated persons, and consequently can be maintained only when the deceased left surviving him some one entitled to its benefit. Thus, where a statute gives a right of action for the benefit of the widow and next of kin, a husband, not being the next of kin to his wife, is not within its terms, and an action cannot be maintained if the deceased leave a husband only. Lucas v. Railroad Co., 21 Barb. 245; Railroad Co. v. Dixon, 42 Ga. 327. So, also, where the statute is for the benefit of the widow and children, no recovery can be had when the deceased left no widow or children. Com. v. Boston & A. R. Co., 121 Mass. 36.

But it will be observed that the right of action created by our statute is not for the benefit of any particular person, but the damages recovered become assets of the estate, to be applied by the administrator to the payment of debts, or distributed as the exigencies of the estate and the laws governing the distribution of personal property may direct. Under Lord Campbell's Act, and similar statutes, the damages recovered belong to the designated beneficiary, and are measured by the value of the life taken to the particular person entitled to the benefit of the statute; while under our statute they belong to the estate, and are coextensive with the value of the life lost, without regard to its value to any particular person. In the one case the object of the action is to recover the pecuniary loss sustained by the designated relatives, and in the other the value of the life lost, measured, as near as can be, by the earning capacity, thriftiness, and probable length of life of the deceased, and the consequent amount of probable accumulations during the expectancy of such life. Carlson v. Railway Co., 21 Or. 450, 28 Pac. 497. It follows, therefore, that, so far as the right to maintain the action is concerned, it is immaterial whether the deceased left surviving him any relatives or creditors whatever. The right of action is given by the statute to the administrator or executor in his representative capacity, and is in the nature of an asset of the estate. The heirs, creditors, or distributees have no interest in the recovery on account of any right of action for the pecuniary injury sustained by them, but only by virtue of being creditors or of kinship; and, if the expense of

the administration and debts of the deceased equal or exceed the assets, including the amount of the recovery, the next of kin would receive no benefit whatever from the right of action.

It is ingeniously argued, however, that an estate of a deceased person can in no way be damaged by his death, and this is probably true if the word "estate" is to be taken in the technical sense of meaning the property left by him. But it is not so used when speaking of the measure of damages for the wrongful death of a person. It is thus used as a convenient term to distinguish the rule as to the measure of damages under our statute from the one prevailing under statutes similar to Lord Campbell's Act, and in which the recovery is for the benefit of some designated individual. .

Finding no error in the record, the judgment must be affirmed, and it is so ordered.

118. DOLSON v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY

SUPREME COURT OF MICHIGAN. 1901

128 Mich. 444, 87 N. W. 629

ERROR to Circuit Court, Jackson County; Erastus Peck, Judge. Action by David Dolson, administrator of the estate of Daniel Dolson, Jr., against the Lake Shore & Michigan Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed in part. C. W. Weaver (Geo.*C. Greene and O. G. Getzen-Danner, of counsel), for appellant.

Wilson & Cobb, for appellee.

MONTGOMERY, C. J. This action is brought by Daniel Dolson, Sr., as administrator of the estate of his deceased son, Daniel Dolson, Jr., whose death occurred on the 3d day of October, A. D. 1898, under the following circumstances: Deceased and his half-brother, James Davis, were engaged in unloading crushed stone from gondola cars standing on defendant's team track in the yards in the city of Jackson. The stone was owned by one Robert Lake, a business man of Jackson, and was being unloaded into wagons for him by Davis and deceased. There were three cars of this stone standing upon the track at the north end of the yard, at the usual place of unloading into wagons. Standing on the track next north of the stone cars was a box car loaded with granite, and north of that a short distance, on the same track, was a car loaded with hoops. At the time of the accident Davis and Dolson had unloaded the north car of stone, and about one-half of the middle car, beginning at the south end. . . . The cars came together when the south end of the half-unloaded car was just opposite the cattle chute. It is claimed on the part of plaintiff that the stone cars had come to a full stop, and that

the engine and the four cars struck the south stone car with such great and unnecessary force that Dolson, who was standing back about six feet from the south end of the car, leaning up against and having hold of the side of the car with both hands, bracing himself, was thrown over the south end of the car between the two stone cars, and was run over by the south stone car. He was run over by the trucks under the north end of the south stone car, and, to all appearances, drew himself from under the car before the south trucks reached him. His injuries were such as to leave no hope of his surviving them, and he died about midnight of the same day, being a part of the time conscious. The declaration contained two counts: the one under the Survivor Act, so called, and the other under the Death Act. A recovery was had under each count, in the sums of $800 and $1,200, respectively. The two principal questions argued are: First, whether plaintiff can recover at all; and, second, whether, if entitled to recover, he is entitled to maintain an action under both the Survivor Statute and the Death Act, and, if not, under which one he is entitled to recover.

Upon the question whether plaintiff is entitled to recover under both the Death Act and the Survivor Act, my views have undergone no change since writing the opinion in Sweetland v. Railway Co., 117 Mich. 350, 75 N. W. 1066, 43 L. R. A. 568. On the contrary, my views have been fortified by a re-examination of the cases. Since that case was decided, the Supreme Court of Wisconsin, in an able opinion, written by Mr. Justice Marshall, and concurred in by the entire Court, has held that under statutes similar to ours the two remedies are given. Brown v. Railroad Co., 77 N. W. 748, 44 L. R. A. 579. In addition to the case of Hurst v. Railway Co., 84 Mich. 539, 48 N. W. 44, cited in the Sweetland Case, our attention has been directed to the case of Hyatt v. Adams, 16 Mich. 180, the reasoning of which, in my judgment, supports the contention of plaintiff. The able opinion of Mr. Justice Christiancy cannot well be epitomized without detracting from the force of that able justice's convincing reasoning, but deserves a careful reading. It is suggested that the Sweetland case decides that two remedies do not exist, and that all that now remains for decision is which remedy is open. I do not so read the Sweetland case. In that case an action was brought with a count under the Survival Act and a count under the Death Act. On the trial the defendant had a verdict under the count on the Death Act. The plaintiff recovered under the Survival Act, and defendant alone appealed. The judgment was reversed. The holding, therefore, was that no recovery could be had under the Survival Act, under the facts of that case. . . . It will be seen that the abstract question whether two remedies were given was not before the Court for determination. The question is now not different than it would be if two separate cases were here. In such an event, the question whether a remedy existed under the statute invoked would be presented for decision. If a majority of the Court were of the opinion that such a remedy was intended, would it

not be applied? There can be but one answer to the question. True it is that in determining this question it would be proper to take into account the question whether another remedy was given by another statute, which was intended to exclude the one invoked; and, in deciding this question, any preumption, more or less strong, that the Legislature did not intend two remedies, would be proper to be considered. . . . I do not understand that any one contends that it is incompetent for the Legislature to give remedies to two parties for the same wrongful act of another. There is no declaration in either of the statutes that two remedies shall not exist. The question which must be presented whenever either remedy is sought is whether a statute which in its terms gives such remedy is rendered inoperative by the provision of the other statute. The Survival Act was first passed. What logic is there in the position of one who asserts that the Death Act did not repeal the Survival Act, but that the Survival Act alone applies to a particular case, and who, notwithstanding this view, holds the exact reverse, i. e., that the Death Act did repeal the Survival Act, and that the Death Act alone applies to the case? It is impossible for me to find that this Court has decided that two remedies do not exist, or that it should so decide until a majority of the Court say that one or the other of the remedies sought is excluded by the other. This has not yet been done. I understand, however, that a majority of the Court are of the opinion that it should be held that in a case where the death is not instantaneous there can be no recovery under the Death Act, so called (Comp. Laws 1897, § 10,427).

I think the judgment should be affirmed.

HOOKER, J. In the case of Sweetland v. Railway Co., 117 Mich. 329, 75 N. W. 1066, 43 L. R. A. 568, a majority of the Court expressed the opinion that the law does not permit recovery by an administrator under both of the statutes which are there called respectively the "Death" and "Survival" Acts. While we entertained different views upon these statutes, the result was that the judgment was reversed. The question is now before us again in a case where recovery has been had upon both statutes. It has always been the policy of the common law not to permit recovery for causing death, nor to permit the survival of actions for personal injuries. While Michigan was still a Territory, the rule as to the survival of actions for personal injuries was abrogated by the passage of the Survival Act, which covered assault and batteries. Under it one receiving a mortal wound had a cause of action which would survive. As yet no action was given for causing instantaneous death, though death following as a consequence was practically covered in assault and battery cases by the Survival Act, as stated. In 1848 the Death Act was passed, and it gave to the administrator a right to recover for the benefit of the widow and next of kin in certain cases. This was not an absolute right to the widow and child to recover, each for herself or himself, the damages actually suffered, which would have been a simple provision to make. It was hedged about by limitations. Apparently the Legislature