of the former provision. The fallacy of both processes of reasoning grows out of a failure to observe the distinction between the wrong and the resulting loss; that, though there be but one wrongful act and one physical injury, there may be several persons that suffer distinct losses, some of which are actionable at common law and some actionable dependent on the statute. Justice Brewer, who was a member of the Kansas Court at the time the first decision there was rendered, and concurred in it, referring to the subject when he was later called upon to consider the matter as a member of the federal bench, in the case of Hulbert v. City of Topeka (C. C.) reported in 34 Fed. 510, said, substantially, that he doubted the correctness of his former opinion, and followed it only in deference to the settled judicial policy of Kansas, the cause being one that arose there; that the basis of recovery under the two provisions of law under consideration, the one for the benefit of the estate of the decedent, and the other for the benefit of his surviving relatives, are entirely distinct, the former being based upon survivorship of the claim of the deceased, taking no note of the pecuniary loss to relatives, and the other on survivorship of relatives mentioned in the statute, taking no note of damages to the decedent; that the latter proceed regardless of whether the death was instantaneous or followed after months of pain and suffering, being damages to relatives by death, to be measured by their pecuniary loss caused thereby, while the former is for loss that would otherwise be a permanent injury to the estate itself. For further illustrations of the distinction, the following in Mr. Justice Wilson's opinion in Needham v. Railway Co., 38 Vt. 294, is quoted by Justice Brewer: 'The principles on which the intestate's cause of action rested at common law are the same, irrespective of the cause of his death.' It 'died with his person, but is revived by the statute in favor of his administrator.' It includes 'nothing more than his intestate's cause of action. The statute simply revives, but does not enlarge, the common-law right of the intestate.' The provision for surviving relatives 'introduced principles wholly unknown to the common law, namely, that the value of a man's life to his wife and next of kin constitutes a part of his estate.' 'Such damages to the widow and next of kin begin where the damage of the intestate ended, viz., with his death.' The weakness of the theory that the action for injuries to the person which survive includes only those not covered by the statute for the benefit of surviving relatives is further illustrated by the fact that Courts adhering to that view uniformly refer to Read v. Railway Co., L. R. 3 Q. B. 555. The decision there is only to the effect that, if an injured person have satisfaction of his claim before death, the subsequent death from the injuries does not confer a right of action upon surviving relatives; that such right exists only where there is an injury to a person, and there is an existing claim for damages therefor at the time of his death. Justice Blackburn, who delivered the opinion, said, in substance, that the proper construction of the statute is that it gives a right of action to certain surviving relatives of a person when death was caused by the wrongful act of another, where he had not received satisfaction in his lifetime, and that to go further would be straining the language of the law. That seems plain. The language of our statute is that liability of the wrongdoer exists where the deceased could have recovered if death had not ensued. That clearly excludes the idea that, where the decedent receives satisfaction for his injuries, the conditions requisite to the right of surviving relatives may exist notwithstanding. There is nothing in Read v. Railway Co. in conflict with Blake v. Railway Co., 10 Eng. Law & Eq. 443, where, in a very instructive opinion by Coleridge, J., it is said that Lord Campbell's Act does not transfer to the surviving relatives

mentioned the claim for damages previously possessed by the deceased, but gives to them an independent cause of action for damages peculiarly incident to their relation to the deceased. The two cases are often cited to opposite views, but are in fact, when correctly understood, in perfect harmony. The one holds that the right of the relatives named in the statutes is separate and distinct from that possessed by the deceased; the other, that the right of the relatives is contingent on the death of the injured person without having satisfied his claim for damages."

I can see no fault in the reasoning contained in these excerpts, and think it entirely in harmony with the suggestions contained in Hyatt v. Adams, 16 Mich. 180, and Hurst v. Railway Co., 84 Mich. 539, 48 N. W. 44. The language of the two Acts is not ambiguous. There is nothing, to my mind, in the language of the Death Act which indicates it was intended to repeal the Survival Act; or in the language of either Act which precludes the representative of the estate of the deceased from recovering for the benefit of the estate under the Survival Act, and for the benefit of the persons entitled to the personal property of the deceased under the Death Act. I agree with the Chief Justice that the judgment should be affirmed.

119. MAHONING VALLEY RAILWAY COMPANY v. VAN

ALSTINE

SUPREME COURT OF OHIO. 1908

77 Oh. St. 395, 83 N. E. 601

ERROR to Circuit Court, Mahoning County.

Action by Thomas B. Van Alstine against the Mahoning Valley Railway Company. Judgment for defendant was reversed in the Circuit Court, and defendant brings error. Affirmed.

Action was brought in the Common Pleas of Mahoning by defendant in error as administrator of the estate of Alice M. Baird, deceased, in the interest of the next of kin of said deceased, against the plaintiff in error, the Mahoning Valley Railway Company, a street railway corporation, to recover for the alleged wrongful and negligent killing of said deceased, who was at the time of the accident, April 11, 1901, a passenger on a car of the said company and who died October 3d thereafter. As a defence to such action, it was pleaded by the company in its answer, in substance, that said deceased, during her life, to wit, August 3, 1901, commenced an action against the company to recover compensation for all the injuries she received and all damages sustained on account of the same alleged negligent acts of the company which are described and complained of by the plaintiff herein; that while said action was pending said Alice M. Baird deceased, and thereupon, on December 17, 1901, her said civil action was, on the motion of her administrator, Thomas

B. Van Alstine, duly revived by order of Court, and was thereafter prosecuted in the name of said administrator to final judgment against said defendant company, which said judgment and all costs of the action have been fully paid and satisfied by the said company. The wrongful and negligent acts averred and stated in the petition filed by said Alice M. Baird in her said action are precisely and identically the same wrongful and negligent acts of defendant averred and stated by plaintiff herein, and the cause of action upon which said Alice M. Baird sought to recover and upon which said final judgment was rendered is precisely and identically the same cause of action upon which recovery is sought against defendant in this action, and by the record of said final judgment rendered the said administrator is concluded and estopped from the further prosecution of this action. To that answer the administrator replied, in substance admitting that the wrongful and negligent acts of the company averred and stated in the action on which final judgment was rendered are the same wrongful and negligent acts of the company averred and stated by this plaintiff in his pleading herein, but, in substance, denied that the cause of action upon which said Alice M. Baird sought to recover and upon which final judgment was rendered is precisely and identically the same cause of action stated and averred in the pleading herein and upon which recovery is sought against defendant in this action, denying, also, that by the record of said final judgment he is concluded and estopped from the further prosecution of this action; and for further reply averred, in substance, that by an amendment filed by said administrator December 28, 1901, to the original petition of Alice M. Baird in her action, and by a disclaimer filed by said administrator June 3, 1902 (said dates being prior to the time of trial of said case), said administrator dismissed all claims for damages made by Alice M. Baird during her lifetime, in the petition by her filed, except for compensation for the pain and suffering endured by her from the time of injury complained of in her petition to the time of her death, the period of 160 days, and that said judgment so recovered by said administrator against said company in said action represented only compensation for the pain and suffering endured by said Alice M. Baird for the period of 160 days, and was not recovered for, or paid to, the individuals for whose benefit this action has been brought. In the Common Pleas a general demurrer to the reply was filed, which being sustained, the plaintiff not desiring to further plead, judgment was rendered against the plaintiff and for costs. On error to the Circuit Court that judgment was reversed, and the cause ordered remanded to the Common Pleas for further proceedings. The company brings error.

Arrel, Wilson & Harrington, for plaintiff in error.

Murray & Koonce and Mark M. Gunlefinger, for defendant in

error.

SPEAR, J. (after stating the facts as above). It will be observed that the question of difference is not whether or not the acts of negligence

alleged and relied upon in the two actions were identically the same, but rather whether or not the cause of action in the case upon trial was the identical cause of action set up in the first suit and adjudicated by the final judgment therein. It is the contention of counsel for the plaintiff in error that not only were the negligent acts identically the same, but that the causes of action were also identically the same, and that, this being so, the prosecuting of the deceased woman's cause by her administrator in the revived action, and the final judgment and satisfaction thereof, must have precisely the same legal effect as though Mrs. Baird had lived and had herself prosecuted her action to final judgment, because the administrator, being her personal representative, must be held to have succeeded to all rights which she had, and to stand in all respects regarding that action as she did before suit had she herself recovered. judgment in the case. Nor, say the learned counsel, could the administrator, by disclaimer, or by any attempt to waive his right to recover any item of damages which he was entitled to recover in that action, limit the effect of the final judgment as a bar to a second action, the causes of action being, as before stated, identically the same. So that the disclaimer by the administrator before trial of all claims for damages made by the deceased in her petition except for pain and suffering endured by her from the time of the accident until her death cannot have the effect of permitting any omitted grounds of damage to be tried in another action, for a party must unite all his claims for damage arising from the same transaction in one suit against the party, and cannot split them up, and try some in one case and others in a subsequent case. And this view was sustained by the Court of Common Pleas in its holding in sustaining the demurrer to the reply and rendering judgment against the plaintiff.

It is, however, the contention of defendant in error that Alice M. Baird had a common-law cause of action existing at the time of her decease, which by the statute survived and might be prosecuted as it was prosecuted after revivor by her administrator to recover such damages, and such only, as she herself had sustained by reason of the injury for the benefit only of her estate, while the second action, although by the same administrator, was not in any sense for the injury she had sustained, not for pain or suffering, not for the benefit of her estate, but solely and only for the benefit of her next of kin, whose loss was caused by her death, and whose damages were to be measured by the pecuniary loss which they had sustained by reason of such death. And this contention was sustained by the Circuit Court in its judgment of reversal. Which of these contentions is the law of the case is the question presented to this Court. By the rules of the common law the action pending at the time of Mrs. Baird's death, and her cause of action, would have abated by reason of her death, but the provisions of sections 4975, 5144, Rev. St. 1906, changed the common-law rule in those respects. Those sections are as follows:

"Sec. 4975. In addition to the causes of action which survive at common law, causes of action for mesne profits, or for injuries to the person or property, or for deceit or fraud, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same."

"Sec. 5144. Except as otherwise provided, no action or proceeding pending in any Court shall abate by the death of either or both of the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of either party."

The right of the administrator, therefore, to recover in the revised action, rested upon the common-law right of action inhering in the injured person, and the preservation of that right in the administrator by virtue of the sections above quoted. The right to maintain the action brought by the administrator in the interest of the next of kin rests upon sections 6134, 6135, Rev. St. 1906, the pertinent parts of which are as follows:

"Sec. 6134. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the corporation which, or the person who would have been liable if death had not ensued, or the admintrator or executor of the estate of such person, as such administrator or executor, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter; and when the action is against such administrator or executor the damages recovered shall be a valid claim against the estate of such deceased person."

"Sec. 6135. Every such action shall be for the exclusive benefit of the wife, or husband, and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the personal representative of the deceased person; and in every action the jury may give such damages, not exceeding in any case ten thousand dollars, as they may think proportioned to the pecuniary injury resulting from such death, to the persons respectively for whose benefit such action shall be brought. Every such action shall be commenced within two years after the death of such deceased person; . . . the amount received by such personal representative, whether by settlement or otherwise, shall be apportioned among the beneficiaries, unless adjusted between themselves, by the Court making the appointment in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiaries and the laws of descent and distribution of personal estates, left by persons dying intestate."

The question in our case, therefore, centres around the construction to be placed upon and the effect to be given to the foregoing sections of the statute. Did the lawmakers, by this legislation, intend to preserve from abatement the right of the administrator to recover damages for the benefit of the estate where the party injured died from the effect of the wrongful act and as a consequence of it, and also to create a new and