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 felony." Hurd's Rev. St. 1908, c. 70, § 1.

The second section of our statute provides that the action given by the first section thall be brought in the name of the personal representative of the deceased, for the exclusive benefit of the widow and next of kin of the deceased. It will be observed that this Act did not affect the common law where the wrongdoer died before judgment, and in that event there could be no further prosecution of any action for the wrong. Nor did the Act provide for bringing an action where the death of the party injured resulted from some cause other than that which occasioned the injury. With the law in this condition the Legislature, in 1872, enacted section 122, c. 3, Hurd's Rev. St. 1908, which reads:

"In addition to the actions which survive by the common law, the following shall also survive: Actions of replevin, actions to recover damages for an injury to the person, (except slander and libel,) actions to recover damages for an injury to real or personal property, or for the detention or conversion of personal property, and actions against officers for misfeasance, malfeasance or nonfeasance of themselves or their deputies, and all actions for fraud or deceit.”

This section provides for the survival of any action therein designated if the party aggrieved, or the wrongdoer, or both, should die. Northern Trust Co. v. Palmer, 171 Ill. 383, 49 N. E. 553. Under this section, if the party injured survives and the wrongdoer dies, the party injured may in his lifetime maintain the action, and plaintiff in error herein contends that, this being true, upon the person injured dying as the result of the wrongful act, neglect, or default, his legal representative can maintain the action against the legal representative of the deceased under the provisions of section 1, supra, for the reason that an action is given by that section against "the person who or company or corporation which would have been liable if death had not ensued." The position of defendant in error is that the two statutes are wholly independent, and that section 122, supra, not having been enacted until 1872, the language last quoted from the Act of 1853 means the person who at common law "would have been liable." Defendant in error relies principally upon the following cases: Hegerich v. Keddie, 99 N. Y. 258, 1 N. E. 787, 52 Am. Rep. 25; Norton v. Wiswall, 14 How. Prac. (N. Y.) 42; Hamilton v. Jones, 125 Ind. 176, 25 N. E. 192; Moe v. Smiley, 125 Pa. 136, 17 Atl. 228, 3 L. R. A. 341; Russell v. Sunbury, 37 Ohio St. 372, 41 Am. Rep. 523; Davis v. Nichols, 54 Ark. 358, 15 S. W. 880. All these cases arise under statutes which, in substance, are as the first section of Lord Campbell's Act; but neither of the first five seems to have been affected by a statute such as section 122, supra, and for that reason we do not deem them in point. In Arkansas, however, in addition to a statute substantially in the same terms as the

first section of Lord Campbell's Act, there was a statute which provided that for wrongs done to the person or property of another an action might be maintained by the person injured, or his administrator, against the wrongdoer or his administrator. In the Arkansas case the person injured died from his injuries. An action was prosecuted by his administratrix against the wrongdoer. Pending the suit the wrongdoer died, and the question was whether the cause could be revived against his administrator. The Court held that whatever cause of action the person injured had in his lifetime against the wrongdoer survived against the administrator of the wrongdoer by virtue of the statute last mentioned, but that the cause of action which may be asserted against the administrator of the wrongdoer by the administrator of one who has received a wrongful injury and died therefrom does not inure to the benefit of the widow and next of kin; that the action which is prosecuted for their benefit is not founded on survivorship, but is a new cause of action which the death itself originates, and which begins when the action which could have been asserted by the injured man would end if it was not saved by the survival statute. Placing this construction on the statute of that State, the Court in an able opinion reaches the conclusion that the suit, in so far as it was brought for the benefit of the widow and next of kin - that being the right of action given by Lord Campbell's Act could not be maintained against the administrator of the wrongdoer, as it was not within the terms of the statute providing for the survival of actions, but that the administrator of the person injured could maintain an action against the administrator of the wrongdoer for the cause of action which was originally in the injured person himself, as that cause of action, by virtue of the statute, did survive to his administratrix.

Contrary to this view we have already held, notwithstanding section 122, supra, that after the death of the person injured no action can be maintained for the damages which he could have recovered had he not departed this life, and that the only action which his administrator can maintain is the action for the benefit of the widow and next of kin which is given by the statute of 1853. Holton v. Daly, 106 Ill. 131. While it is held in the Arkansas case that the action which is prosecuted for the benefit of the widow and next of kin is upon a new cause of action which the death itself originates, we have held that the cause of action is the same, viz., the wrongful act, neglect, or default, whether the action be brought by the person injured in his lifetime, or by his administrator after his death has been occasioned by the tort; the only difference, according to our view, being that the measure of recovery is not the same. Holton v. Daly, supra. Having held, contrary to the view of the Arkansas Court, that the right to recover which was in the person injured does not survive, if we should now hold with that Court that the right of action given by section 1, supra, could not be asserted against the administrator of the deceased wrongdoer, it is

manifest that section 122 would leave the administrator of the person wrongfully injured, who dies from his injuries, without any right to proceed against the administrator of the wrongdoer, precisely as was the situation at common law. No such result is warranted by the opinion in Davis v. Nichols, supra. We have heretofore held that this statute (section 122, supra) is remedial in its character and is to be liberally construed. That being true, the construction contended for by defendant in error should not be adopted.

In Holton v. Daly it was said that the section in question "was not intended to apply to cases embraced by the Act of February 12, 1853," and this statement is regarded by defendant in error as decisive of the present controversy. In that case the Court gave no consideration whatever to any question in reference to what actions would survive or might be brought against the legal representative of the wrongdoer. The only thing under consideration was the right of the administrator of the injured person against the wrongdoer himself. The quoted words were not used with reference to the question now under consideration, and they are therefore without significance in this case. If an injured person dies from some cause other than the injury, the cause of action for damages to the time of his death survives under section 122. Holton v. Daly, supra; Savage v. Chicago & Joliet Railway Co., 238 Ill. 392, 87 N. E. 377. . .

We are of opinion that since the enactment of section 122 of the Act of 1872 the legal representative of the deceased wrongdoer is, within the meaning of section 1 of the Act of 1853, "the person who . . . would have been liable" if the death of the party injured had not

been occasioned by the injuries.

The judgment of the Branch Appellate Court and the judgment of the Superior Court will be reversed, and the cause will be remanded to the latter Court, with directions to overrule the demurrer.

Reversed and remanded, with directions.1

SUB-TOPIC E. EFFECT OF STATUTES CONCERNING EMPLOYER'S

LIABILITY

123. REVISED LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, 1902. Employment of Labor; Liability of Employers to Employees; Injury followed by Death. Section 72. If the injury described in the preceding section results in the death of the employee, and such death is not instantaneous or is preceded by conscious suffering, and if there is any person who would have been entitled to bring an action under the provisions of the following section, the legal representatives of said employee may, in the action brought under the provision of the preceding section, recover damages for the death in addition to those for the in

"Death by Wrongful Act; Survival of Liability upon the Tortfeasor's Death." (I. L. R., IV, 425.)]

jury; and in the same action under a count at common law may recover damages for the conscious suffering caused by the same injury. (St. 1906, c. 370.)

Section 73. If, as the result of the negligence of an employer himself, or of a person for whose negligence an employer is liable under the provisions of section seventy-one, an employee is instantly killed, or dies without conscious suffering, his widow or, if he leaves no widow, his next of kin, who, at the time of his death, were dependent upon his wages for support, shall have a right of action for damages against the employer.

Section 74. If under the provisions of either of the two preceding sections, damages are awarded for the death, they shall be assessed with reference to the degree of culpability of the employer or of the person for whose negligence the employer is liable.

The amount of damages which may be awarded in an action under the provisions of section seventy-one for a personal injury to an employee, in which no damages for his death are awarded under the provision of section seventy-two, shall not exceed four thousand dollars.

The amount of damages which may be awarded in such action, if damages for his death are awarded under the provisions of section seventy-two, shall not exceed five thousand dollars for both the injury and the death, and shall be apportioned by the jury between the legal representatives of the employee and the persons who would have been entitled, under the provisions of section seventythree, to bring an action for his death if it had been instantaneous or without conscious suffering.

The amount of damages which may be awarded in an action brought under the provisions of section seventy-three shall not be less than five hundred nor more than five thousand dollars.

124. PUBLIC LAWS OF THE UNITED STATES OF AMERICA. An Act relating to the Liability of Common Carriers by Railroad to their Employees in certain cases. (St. 1908, April 22; Stats. at Large, vol. 35, c. 149, p. 65.) Section 1. Every common carrier by railroad while engaging in commerce between any of the several States and Territories, or between any of the States and Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency due to its negligence, in its cars, etc.

125. JORDAN v. NEW ENGLAND STRUCTURAL COMPANY SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1908

197 Mass. 43, 83 N. E. 332

Two ACTIONS OF TORT, both brought under the Employers' Liability Act as stated in the first paragraph of the opinion. Writs dated respectively December 31, 1901, and January 18, 1905.

In the Superior Court the cases were tried together before Richardson, J. The evidence is described in the opinion.

...

The judge refused to make any of these rulings and submitted the cases to the jury, who returned a verdict for the plaintiff in the first case in the sum of $3,000 and a verdict for the plaintiff in the second case in the sum of $300. The defendant alleged exceptions.

W. H. Hitchcock (G. A. Drury with him), for the defendant.

S. R. Jones, for the plaintiffs.

KNOWLTON, C. J. These two cases were brought under the Employers' Liability Act, the first by a minor, to recover damages for personal injuries received through the negligence of the defendant's superintendent, and the second by the minor's father, to recover for loss of service of the son, and for the expenses of his medical attendance rendered necessary by the accident.

In the defendant's shop there was a large crane, estimated to weigh about twenty tons, which passed in and out upon an iron track nearly twenty feet above the ground, which track was supported by girders. . . . The minor plaintiff was an iron worker. . . . His companion went away temporarily, and one Flynn, a foreman who directed the work, came up to take his place, standing in a similar way, with one of his hands holding the rail of the track. The crane came along over the track and cut off the ends of two of the plaintiff's fingers.

The case of the father presents a different question. This, like the other, is brought under the Employers' Liability Act, and no negligence is charged except that of the superintendent. At common law neither of the plaintiffs could recover, as the only negligence complained of was that of a fellow servant. The Employers' Liability Act cannot be availed of by the father to recover for loss of service or for expenses, inasmuch as this statute gives a right of action only to the employee or his legal representatives, or, if he is instantly killed or dies without conscious suffering, to his widow or next of kin. R. L. c. 106, §§ 71, 73.

...

"The employee or his legal representatives shall . . . have the same rights to compensation and of action against the employer as if he had not been an employee," etc.

If he is a minor, this enlargement of his rights at common law does not extend to his father, suing in his own right.

The same construction is put upon the statute giving damages to persons injured by defects in highways, existing through the negligence. of cities and towns. Harwood v. Lowell, 4 Cush. 310; Nestor v. Fall River, 183 Mass. 265.

It has also been given to a similar Employers' Liability Act by the Supreme Court of Alabama. Lovell v. DeBardelaben Coal & Iron Co., 90 Ala. 13: Woodward Iron Co. v. Cook, 124 Ala. 349. In this action the exceptions must be sustained. Ordered accordingly.