Southern Bell Telephone & Telegraph Co. v. Cassin , 111 Ga. 575 ( 1900 )

Simmons, C. J.

George Cassin was injured by the plaintiff in error, May 6, 1892. He instituted suit, and, while the action was pending, the company paid him $2,500, taking a receipt stating that it was “in full settlement of my action against said company, now pending in the city court of Atlanta, and also in full settlement of all and any claim for damages on my part, arising out of the injury received by me on or about May 6th, 1892.” More than five years after the injury, Cassin died, and his widow thereupon brought suit against the company for his homicide, alleging that his death was caused by the inju^, negligently inflicted by the companj-. She too died, and the suit was then continued in the name of the children. The evidence as to the cause of the death of Cassin was conflicting. One physician testified that it was due to apoplexy, superinduced by Cassin’s habit of body, and great mental distress caused by domestic afflictions. Another physician testified that-it was caused by the blow from the fall of the telephone cable. The company offered in evidence the receipt given by Cassin in settlement of the damages, and the court excluded it.

The technical rule of the common law, preventing a "wife or child from recovering damages for the death of a husband or father, was a great hardship. There was a crying demand for the enactment of a law which would give a cause of action against “the person who would have been liable if death had not ensued,” and in 1846 was passed Lord Campbell’s act, the first of a series of acts giving such remedy. At the present time, like statutes exist in nearly all of the States of the Union, and none more liberally protect the rights of the wife and child than does that in Georgia. In many of the States, while there is no limit to the amount of damages recoverable for personal injury, there isa limit in case of death; some providing that the verdict, in case of death, shall not exceed five thousand dollars, and some that it shall not exceed ten thousand dollars. In others, while there is no statutory limit to the amount of the verdict, the widow or children are only entitled to recover the “pecuniary value” to them of the father or husband; and in arriving at this pecuniary value, the jury must consider and deduct at least what he would have spent on himself. But so liberal to the wife and children are the provisions of our law, that, when the facts show that the defendant is liable for the death of the husband or father, the jury’s verdict is for the “full value of the life of the deceased, without deduction for his necessary and personal expenses” — a provision which “to say the least, is a' harsh rule, and must be strictly construed.” Smith v. Hatcher, 102 Ga. 160. The proposition relied on by defendants in error, if correct, exactly doubles the operation of a statute which has already gone a bowshot beyond that of any other State. For it is claimed that this act gives the widow the full value of the life of the husband, even though he, in his lifetime, had received from the defendant compensation for the injury inflicted, and that evidence of the release can not be introduced, either as a bar to her recovery, or to be considered by the jury in reducing the amount of the verdict. A decision which would announce to persons who have settled with parties injured, that the settlement, instead of being in full, was only partial, that if death ensues as a result of the injury, they must pay again, and this time the full value of the life of the deceased, will be justly regarded as a great hardship; and it will come to the widows and children, not as the grant of a right heretofore unjustly withheld, but as a second payment of a claim already satisfied.

Examining the decisions in England under Lord Campbell’s act, and the decisions under similar statutes enacted by the various States in the Union, we find that sometimes the right of action is vested in the injured party, and survives to his personal representatives, or family. Sometimes a cause of action for the death is given to the personal representatives, who sue for the benefit of his estate,— or sometimes for the benefit of persons who are dependent on him. In such cases the personal representative is trustee for these beneficiaries, and not for the estate. In other cases, the widow, or children, are given directly the right of action for the death of the husband. But these differences are all incidental. Tiffany, Death by Wrongful Act, § 24. Each of these statutes had the same purpose as our own ; differing as to details, they are all intended to give the personal representatives, or the members of the family, or whomsoever the plaintiff might be, a right to recover against “the person who would have been liable if death had not ensued.” In Littlewood v. Mayor, 89 N. Y. 24, s. c. 42 Am. Rep. 271, the court had under consideration an act giving the personal representative a cause of action for death, and said : “ The main purpose was to deprive the wrong-doer of the immunity from civil liability. The entire gist of the first section is that the wrong-doer shall be liable to an action for damages notwithstanding the death of the person injured. It does not provide that the wrong-doer shall be liable notwithstanding . . any other defense he might have had at the time of death, but merely that the death of the party injured shall not free him from liability, —showing that this is the point at which the statute is aimed.” Most of the statutes are absolutely silent as to the effect of settlements made by the husband in his lifetime, and yet, notwithstanding this silence, the courts have generally held that such settlement was a bar to another suit against the same party, as the act was not intended to “give two actions for a single injury.” Sawyer v. Perry, 33 Atl. Rep. 660. Some of these decisions had been rendered before our act of 1887, and are fairly to be presumed to have been within the knowledge of the legislature when revising the law on the subject of death by wrongful act. If that body had intended to change this well-known construction as to the effect of settlement, it would have said so. Its silence is to be taken as more indicative of approving than disapproving of this line of cases. For many years the code has permitted a widow, and, if no widow, the children, to recover for the homicide of the husband or father. During that period, hundreds of instances have occurred in which the husband was injured and has. received compensation therefor. In the very nature of things, many of these physical injuries impaired health, and probably hastened death, and yet no suit therefor has, until within recent years, been brought by the widow of such person. Evidently, by the common understanding of the community, payment to the husband, accord and satisfaction between him and the defendant, was regarded as a settlement of all liability growing out of the negligent act. (See Lubrano case, 52 Atl. Rep. 207, bot.) We feel safe in saying that many adjustments have been made upon this idea, which would not otherwise have been made, and that giving to the statute the effect now insisted upon would not only be a great hardship upon defendants, who, relying and acting upon the heretofore generally accepted view of the law, have paid their money and bought their peace, but it would be giving to widows something which they did not expect where a settlement had been made by the head of the family.

But it is said that no decision that a release by the husband bars a subsequent suit by or for the wife is of any value in this case, unless it was rendered by a court which holds that the survival and death acts create new and distinct causes of action. This, therefore, must be borne in mind in estimating the weight of the authorities cited. In reading them, with this prominently in view, it is remarkable to note the various expressions used, in the effort to define the relation which the action by or for the widow bears to the action in favor of the injured husband. Some, in fact all of the courts, may be said to call it a new cause of action, as in W. & A. R. R. v. Bass, 104 Ga. 290. Some call it a “new, but not an independent cause of actionCooley on Torts, 264, speaks of it as an “ enlargement ” or “continuation.” Some call it a “new remedy.” Others hold that there is “one cause of action, and if this is not extinguished during the life of the injured party, it survives, and may become two causes of action.” Others say “the cause of action for the homicide is ‘contingent’ on the death of the injured party without having satisfied his claim for damages.” But, notwithstanding this variety of expressions, there is substantial unity in holding that a release by the husband bars the wife; this view being taken even by those courts which insist most strongly that the two acts create two causes of action, and by courts also which rule that concurrent suits may be maintained. However new it may be, in the very nature of things-it can not be independent; it is inherently rooted and grounded in the injury to the husband. It grows out of it, and is a part of it, having almost complete identity of substance, and subject to the same defenses. More than a dozen courts have directly passed upon the effect of a release by the husband, and all except those of Massachusetts and Kentucky have held that it bars a suit after his death. Commonwealth v. Boston, 134 Mass. 211; Commonwealth v. Vt. & M. R. R., 108 Mass. 7; Donohue v. Drexler, 82 Ky. 187; L. & N. R. R. v. McElwain, 34 S. W. 236 (Ky.); Littlewood v. Mayor, 89 N. Y. 24, 43 Am. Rep. 271; Legg v. Britton, 24 Atl. 1016 (Vt.); Hill v. Pa. R. R., 35 Atl. 997 (Pa.); Hecht case, 32 N. E. R. 302 (Ind.); Fowlkes v. Nash. R. R., 9 Heisk. 827 (Tenn.); Holton v. Daly, 106 Ill. 131; Price v. R. & D. R. R. (S. C.), 12 S. E. R. 414 Walkerton v. Erdman, 21 Canada (S. C.), 352; Read v. Gt. Eastern Ry., L. R. 32 B. 555, decided in 1868, and other English cases. To which may be added the positive dicta in the Sweetland case (Mich.), 75 N. W. Rep. 1066, 1078, both in the concurring opinion of Long, C. J., and in the dissenting opinions of Hooker and Montgomery, JJ., and the equally positive statement of the Supreme Court of Wisconsin in Brown v. Chi. etc., 78 N. W. 773.

The right of the plaintiff to recover in this case notwithstanding the release is said to grow out of the language of our statutes creating two causes of action; one for the injury, and the other for the homicide; and that a settlement of one is not a settlement of the other; it being urged that the survival act of 1889 (Civil Code, §3825), when construed in connection with the death act (Civil Code, § 3828), logically supports the theory that the two suits may proceed concurrently, and that a recovery for the injury would not be a bar to a recovery for the death. And Vicksburg & M. R. R. v. Phillips, 64 Miss. 693, and Davis v. St. L. R. R., 53 Ark. 117, which are relied on, certainly sustain the proposition that “concurrent suits may be maintained.” But the right to maintain concurrent suits-is not involved in this case. What we are .to determine is the effect of a release. The two questions are not identical. If the-effect of a release is to destroy the vital principle of the cause of action, neither single nor concurrent suits can spring therefrom. If, however, no release has been signed, and the injured party dies leaving in force a live cause of action, there might arise the question whether, from this living germ, only one suit, or concurrent suits, could spring. If a release wdpes out the wrong done by the defendant, and makes it as though no injury had been suffered, then, upon the death of the injured party there would be no cause of action, just as though there had been no injury, and it would not be a question as to the right to maintain two concurrent suits, but as to the right to maintain any suit at all. It is, perhaps, improper to consider the act of 1889 (Civil Code, §3825) as strictly a survival statute; for it does not creáte or preserve a cause of action, as such, though it does preserve pending suits. It is not so .much a survival statute as one to prevent the abatement of cases actually in court. For, if the injured party dies before bringing suit, his administrator could not institute an action for the pain, suffering, and diminished capacity to labor, as was expressly held in Frazier v. Ga. R. Co., 101 Ga. 79. The act of 1889 is by no means so broad as the survival statutes of some of the other States, which do preserve the cause of action for an injury, whether a suit had been brought thereon, or not, in the lifetime of the injured party. But, even if we treat the act of 1889 as being a survival statute in the fullest sense, and then undertake to discuss the right to maintain concurrent 'Suits, we w-ould be no nearer a solution of the difficulty, so far as the authorities are concerned; for it will appear that the courts have been frequently called on to determine what effect the survival act has upon the death act, and vice versa; whether the remedy under one is exclusive, or whether the two acts confer two remedies, with the right to maintain concurrent actions. The cases are more in conflict than those wdiicb pass upon the effect of a release,— at any rate, are far more evenly balanced. Some of them hold that under the survival act and the death act “ two separate and distinct causes of action are created, which may" coexist, but have no connection, and that these two actions may be prosecuted concurrently.” This view is forcibly presented in Needham v. R. R. Co., 38 Vt. 395, a view which is followed and elaborated in Davis v. St. L. R. R., 53 Ark. 117; Brown v. Chicago, etc. (Minn.), 78 N. W. Rep. 771, and in Vicksburg & M. R. Co. v. Phillips, 64 Miss. 693. The contrary view is quite as strongly presented in Legg v. Britton (Vt.), 24 Atl. Rep. 1017, overruling the Needham case; Lubrano v. Atlantic Mills (R. I.), 32 Atl. Rep. 205, and Chicago v. O’Connor, 119 Ill. 586, where it is held that concurrent suits can not be maintained, as “the survival statute was only intended to apply when death resulted from some other cause than the injury,” and that in case death results from the wrongful act before the judgment, the death act, and not the survival act, must be relied on. 74 N. W. Rep. 1078. The Kansas court (McCarthy v. R. R., 18 Kan. 46; Martin v. Pac. R. R. 47 Pac. 605) and the Michigan court (Sweetland case, 75 N. W. Rep. 1066) are divided. So that we in ay fairly say the authorities are so evenly balanced, on this point, as to settle nothing, if it were necessary to rule as to the right to maintain concurrent suits.

The assignments of error call only for a ruling as to the effect of a release, and upon that point also there is some conflict, which, however, is not only more apparent than real, but the preponderance is so great as to remove all doubt, — at least, so far as it can be removed in any case, by weight of authority. The Massachussetts court holds that “ the husband can not, by a settlement, bar the wife’s rights”; but, in that State, the statute is highly penal, — the damages being limited, and recoverable by indictment, the fine being for the use of the family. Therefore, in Com. v. Vt. & M. R. R., 108 Mass. 7, it was held that “conditions on a ticket could not relieve the road from liability under a penal statute for gross negligence” ; and in Com. v. Boston etc. R. R., 134 Mass. 211, for the same reason, it was held that want of due care in a passenger would no more be a defense to an indictment for damages than it would have been in a prosecution for murder. And where the suit was in tort, instead of by prosecution by indictment, the result was the same, for “ the fact that the statute is penal must be borne in mind ; . . the remedy by indictment was extended toan action of tort; the amount in either case goes to the widow and. children. . . It is, in substance, a penalty given to them instead of the estate, and, as such, the intestate could not release the defendant from liability for it.” The same distinction must be borne in mind in considering Donohue v. Drexler, 82 Ky. 187, where the court held that a release by the husband did not bar the wife of her action given by statute, “where the husband was killed by the criminal or malicious use of firearms, or other deadly weapons,” and “in such action the jury may give vindictive damages.” The' court does say that it “ creates a new cause of action,” but it emphasizes the fact that “ this is a highly penal statute, . .. . to prevent the perpetration of such acts by awarding vindictive damages.” It cites the case of Schlichtling v. Wintgen, 25 Hun. 627, since overruled, and Whitford v. Panama R. R., 24 N. Y. 467. If the fact that the statute is penal is not the underlying reason for the decision in Donohue v. Drexler, then the state of the authorities in Kentucky is in some confusion; for, in L. & N. R. v. McElwain, 34 S. W. 236, it appeared that though the husband had a common-law right of action for deprivation of his wdfe’s services,, the statute also gave a remedy for her homicide, the damages to be for the use of the husband. The husband insisted on both remedies, but the court held “ there was no intention to multiply actions,” and that the husband’s action was defeated by a judgment in favor of the wife’s representative for larger damages than were recoverable under the old form of action. In Leggott v. Gt. Northern, L. R. 1 Q, B. 599, an administra-, tor had recovered damages for the homicide, under Lord Campbell’s act. Afterwafds the administrator brought suit for damages to the estate, arising from the “ breach of contract of carriage,” claiming that he was entitled to “recover the expense of decedent’s sickness, nursing, medical attendance, and the like.” The court held that the recovery in tort did not bar the action for the breach of the contract; for, as stated by Lord Denman, in Pulling v. Gt. Eastern R., L. R. 9 Q. B. 110, “there was a distinction between actions of contract and actions of tort.” Pym v. Gt. Nor., 2 Best & S. 761; Bradshaw v. Lancashire, L. R. 10 C. P. 189; Barnett v. Lucas, 5 Irish Rep. 6 C. L. 247, and. the Leggott case, have sometimes been cited to show that they overrule, or weaken, the authority of the Read case, cited supra; but without success. In Littlewood v. Mayor, 89 N. Y. 24, and in Lubrano v. Atlantic Mills, 32 Atl. Rep. 205, this was carefully considered, and the Read case shown to be unshaken. See also L. & St. L. R. R., v. Clark, 152 U. S. 237. Even Brown v. Chi. etc. R. R., which follows the Need-ham, Arkansas, and Mississippi cases, treats the Read case as authority, and concedes that the Leggott and Bradshaw cases are to be distinguished therefrom, and are not in conflict with it. The statement by Long, C. L, in Hearst v. Detroit Ry., 48 N. W. 46, that “satisfaction of one claim would be no bar to the other” is said by him in Brown v. Chi. etc. R. R., 75 N. W. 1068, to have been obiter.

We think the cases above cited are the very strongest which can be found in favor of the position taken by the defendant in error. It will be seen that they are based either upon penal statutes or upon decisions which have been overruled, or that the are discussing the effect of concurrent remedies after the death of the injured party, or that the decisions themselves have been weakened by conflicting decisions in the same jurisdictions. To begin with, the English courts have held that Lord Campbell’s act created a new cause of action, and yet, in the Read case, the first decision as to the effect of a release, it was pointedly held “that a plea of accord and satisfaction with the deceased in his lifetime was a good bar to an action by his legal representatives.” The New York court, in Whitford v. Panama, 23 N. Y. 465, positively and unmistakably ruled that “the 'statute created a new cause of action,” that “it was not a mere continuation of the right of action which had been in the deceased.” This was reaffirmed and followed, in the Littlewood case, and yet it was ruled that “this new cause of action” was barred if there had been a previous judgment for tlie injury. Judge Rapallo begins the decision by admitting that it was a “new cause of action,” but says: “This is not the point on which the case turns. The true question is whether in enacting the statute the legislature had in view a case where the deceased, in his lifetime, brought his action, recovered damages for the injury, which subsequently resulted in his death; and whether it was intended to superadd to the liability of the wrongdoer, who had paid damages for the injury, the further liability in case the party afterward died from such injury.” In an able and carefully considered opinion, the court held that the payment to the deceased barred the suit in favor of-the wife. In Legg v. Britton, 24 Atl. Rep. 1016, construing a statute admittedly like our own, the court said: “ It is contended that the statute gives a new cause of action. Strictly, it is a new right of recovery”; but it was nevertheless held that where the injured party sued, and, pending the suit, died from his injuries, and the administrator continued the suit and recovered a judgment, that was a bar to an action for the benefit of the widow. If the recovery “was in the right of the intestate, while living, such recovery, in legal effect, would antedate his death, exhaust his right of action, and nothing would remain to survive for the subsequent action. It would exhaust the liability of the wrong-doer, and no liability would remain to be enforced in the subsequent suit.”

In Pennsylvania, in Fink v. Garman, 40 Pa. St. 103, the court held “that the section created a ‘new cause of action’ wholly unknown to the common law, and the right of action was not given to the person suffering the injury, since no man could sue for his own death, but to his widow and personal representatives.” Yet after quoting this language, in Hill v. Pa. R. R., 35 Atl. Rep. 997, it was held that “the widow did not have such an independent action for injuries causing her husband’s death that he could not, in his lifetime, release or compound it.” The cause of action is the same in both cases, but a new remedy is given the widow, which had no previous existence. If he brings an action and obtains judgment, which is paid, it must be conceded that this is the end of the case. The ‘defendant’s negligence has been tried and adjudged, and when the judgment has been discharged by payment, it has been satisfied for all purposes. The consequences of the transgression have been suffered, and the penalty paid. The statute preserves the right of recovery, but does not give another and additional remedy to other parties for the same injury.” The decision cites the Read case, holds that a release by the injured party was a bar to an action given for the benefit of the widow, and concludes by saying “the person injured has such a right in the cause of action as he may release the offending partj'- from all damages.” In the Hecht case, 32 N. E. Rep. 302, it was “ claimed that the statute gave a new right of action. This is true, in a certain sense. Without the statute, the action could not be maintained. The right to sue is purely statutory, and in derogation of common law, and must be strictly construed.” A settlement by the husband was held to bar a suit for the homicide. In Fowlkes v. Nash. R. R., 9 Heisk. 827, cited intheliecht case, it was held that as the injured party had recovered a judgment, or made a settlement or release, his personal representatives could not sue. It was ruled in Holton v. Daly, 106 Ill. 131: “If the injured party has released his claim for damages, his personal representatives can not sue for the homicide.” In Walkerton v. Erdman, 21 Canada S. C. 352, and in Price v. R. & D. (S. C.), 12 S. E. Rep. 414, it was held that releases executed by the injured party barred a subsequent suit for the benefit of the wife, — the South Carolina court distinctly declining to discuss whether the statute gave a new cause of action, or continued the original cause of action. To these should be added the Sweetland case, 75 N. W. Rep. 1066, 1078, and Brown v. Chicago R. R., 78 N. W. Rep. 773. The Brown case most distinctly asserts the right to maintain concurrent suits because there were two causes of action. And yet it recognized that though concurrent suits might be maintained, they could not be, if the party injured during his life had satisfied the cause of action, for “the extinguishment of the primary cause of action leaves the statute with no office to perform, and only in the absence of such extinguishment are there two causes of action.”

The. Supreme Court of Michigan, in the Sweetland case, was divided as to the right to maintain concurrent actions, but there .w'as no disagreement as to the effect of a release. There were three counts in the declaration. One was for the common-law liability for pain and suffering endured by the deceased prior to death, which it was claimed was not instantaneous, and the right of action for which it was claimed survived by virtue of the statute. The second count was for damages to certain personal property; and the third was for the benefit of a dependent brother under the death statute. There was a verdict in favor of plaintiff on each count. One of the judges held that, as death was instantaneous, there could be no cause of action for pain and suffering which could survive. Long, C. J., in concurring, elaborately discusses the question as to whether survival acts and death acts create two causes of action, or only one, and reaches the conclusion that there was only one cause of action, and that one remedy was exclusive of the other; so that there could not be concurrent suits, one for personal injuries, and a separate suit for the homicide. “The fact that the common-law right of action which survives is for.the benefit of the deceased’s estate, and that the right of action under the death act is given for the benefit of the decedent’s heirs, can make no difference in the construction. It was not the intention of the legislature to give two rights of recovery for the same injury which results in death. ....... If such judgment obtained by her in her lifetime, or settlement so made by her, is a bar to a recovery by the heirs, under 8313 and 8314, then a judgment obtained by the heirs for a cause of action accruing to them by survival under 7397 would be a bar to the right to recover for his death under 8313 and 8314.” Montgomery, J., in his dissenting opinion, said : “It is generally held, and we think, properly, that if the deceased settles for the injury received in his lifetime, or recovers his damages in an action, an action can not be maintained after his death under Lord Gampbell’s act”; citing, among others, the article in 28 Am. Law Reg. (n. s.), 385, 513, 577, where the various statutes are reviewed, and the conclusions reached “that the right of action under Lord Campbell’s act was a new cause of action, and both may be maintained after the death of the injured person, supposing him, not to have recovered damages in his lifetime.” Hooker, ■J., in his dissenting opinion, said: “We find that the courts generally hold that the recovery is a bar to a subsequent action by the administrator, and we think the legislature intended that it should be. The greater number of cases discussing the question deny the dual right of recovery. . . The various cases under different statutes are supported by different reasons, but, as already stated, they generally agree in holding that there is a single remedy.” Tiffany, in his work on Death by Wrongful Act, §124, after giving all the acts of the different States, and citing all the cases, including Lord Campbell’s act, and decisions thereunder, lays the rule down as follows: “If the de■ceased, in his lifetime, has done anything that would operate as a bar to a recovery by him of damages for the personal injury, this will operate equally as a bar in an action bjr his personal representatives for his death. Thus, a release by the party injured of his right of action, or a recovery of damages by him for the injury, is a complete defense in the statutory action.”

Having now fully attempted to consider the state of the authorities outside of Georgia, let us see what are the rulings of our own court. It has never had the exact question involved in this case before it; but it can be positively stated that it has never used an expression which could suggest that there might be two recoveries for the same act of negligence. On the contrary, every ruling so far made unmistakably points to the conclusion that the widow can only recover by showing that if the husband had been living, he too could have recovered against the defendant. The Bass case, 104 Ga. 292, makes this plain. While holding that the widow’s cause of action does not accrue until the death of the husband, and that therefore the statute does not begin to run until his death, yet that decision contains this distinct declaration: “ What we now rule is evidently not in conflict with the adjudications of this court to the effect that, where a widow sues for the homicide of her husband, the defendant may set up any defense which might have 'been pleaded to the merits of the issue, if a suit had been brought by the husband for injuries to his person.” This court has construed sections 3828 and 3829 of the Civil Code to mean that if the husband was an employee, and if under the fellow-servant rule, or if by reason of contributory negligence, he had no cause of action, neither has the wife. So, in a number of other carefully considered cases, these sections have been construed to prevent a recovery by the wife, if the husband himself could not have recovered. Why? The statute does not say so. It simply provides that the widow may recover for the homicide of the husband, caused by crime', or criminal or other negligence. A man may be injured by the negligence of a defendant. His death may be directly attributable to that negligence, and yet, if he consented to the injury, or if by ordinary care he could have avoided the injury or gotten out of the way of the death-dealing negligence, he could not have recovererl for the injury, nor could his -wife recover for his death. These sections prolong or continue an old cause of action, or tliej enlarge the old cause of action, or they substitute a new remedy ; or it may even be conceded that they give a new cause of action, but they do not deal with defenses to that cause of action. The law applicable to defenses is drawn from other sources, and, in applying that law, this court has repeatedly and consistently held that the wife stood in the shoes of the husband. The widow is bound by relations they had established by contract not illegal. The wrong she sues for must be a legal wrong, a wrong which the law recognizes as abreach of the duty the road owed her husband; sbestands in his shoes, has his rights, and takes his responsibilities. W. & A. R. Co. v. Strong, 52 Ga. 461. In the next case, Hendricks v. W. & A. R. Co., 52 Ga. 467, the court says that any relation by contract or law between the person killed and the company, which would bar a recovery by him for damages in case he had not died, applies to and governs the wife ; that the principle which allows a defendant, when sued by a widow for the homicide of her husband, to set up any defense which would prevent or lessen the husband’s recovery, had he not died, was very clearly recognized in M. & W. R. R. v. Johnson, 38 Ga. 409. Even more distinctly was it ruled in Berry v. N. E. R. R., 72 Ga. 137 (1), that a widow may recover for the homicide of her husband ; she will have a right Of action when the husband, had he lived, had such a right, and whatever would have been a good defense to his suit, had he lived, will be equally good against one brought by her. In E. T. V. & Ga. R. Co. v. Maloy, 77 Ga. 242 (6), the mother sued for the death of her minor son, and the-court said : “The suit being by the parent to recover damages-for the killing of a minor,, she can not recover unless, if he were in life, he could recover. She stands in no better condition than the deceased would have stood in, had he not been killed, and was present before the court.”

In all these cases there is a recognition of the privity between husband and wife, or parent and child, as to the circumstances attending the killing, out of which the liability can grow. Outside of the mere acts of the deceased, the courts have-recognized that this privity existed. In Lord v. Pueblo, 21. Pac. Rep. 148, after deciding that declarations not part of the res gestee are not ordinarily admissible, the court held that “such declarations are competent when offered by the defendant; they affect the plaintiff [widow] in a case of this kind in •the same way they would have affected the deceased, if he had lived, and brought an action for the same injury.” A similar ruling was made in Hughes v. Del., 35 Atl. Rep. 190, in a suit by a widow for the homicide of her husband, “since the plaintiff derived her action from the deceased.” “At the time his statement was made, the only right of action there was, was in him; the plaintiff had no claim until he died, and then the foundation of her claim was the injury to him. If defendant would not have been liable to him in the first instance, it was not made liable to her by his death. We are not aware of any case in which a widow has recovered for an injury to her husband, where he could not have done so himself, if he had survived, and, on principle, it is perfectly clear that she can never do so, for the original right of action is in him, and hers is but the succession or substitution of his, where he has not asserted it himself.” In A. & W. P. v. Venable, 67 Ga. 700, the mother was injured and sued, but died before verdict. Her child then brought suit for the homicide of the mother, and sought to use the mother’s interrogatories, which had been sued out in the first case. The court allowed it upon the ground, among others, that the mother represented her child, both suing for injuries in the same transaction,” the substantial cause being the same. In Ga. R. R. v. Fitzgerald, 108 Ga. 507, it is distinctly ruled that the wife and husband are in privity, and that therefore his declarations are admissible against her. It is conceded that this case is directly in point. But it is said that the declarations were admissible on other grounds. That is true, and the court so ruled; but that the controlling reason was the privity appears from the decision itself. ~We quote: “Her right to a recovery must necessarily depend upon a determination of the question whether or not ‘the husband, had he lived, would have had such right; and whatever would have been a good defense to his suit, had he lived, will be equally available against one brought by her.’ Berry v. Northeastern Railroad, 72 Ga. 137. In other -words, she is to be considered in privity with the husband, in so far as her right to complain of the homicide is concerned. It follows necessarily that the company should have been allowed to show, by any competent evidence at its command, that the injuries sustained by him were occasioned, not by the alleged acts of negligence on its part, of which complaint'was made, but by other and wholly different causes. Section 5181 of our Civil Code provides in terms that ‘The declarations and entries of a person, since deceased, against his interest, and not made with a view to pending litigation, are admissible in evidence in any case; ’ while section 5193 undertakes to state the rule that ‘The' admissions of privies in blood, privies in estate, and privies in law are admissible as against’ all persons with whom they are in privity. Accordingly we think that in the present ease the defendant company should have been permitted to prove that the plaintiff’s husband, in undertaking to state the cause of his injuries, had ‘ said that he was making an effort to couple cars, and that his foot struck an obstacle on the track and he fell.’” The Fitzgerald case logically leads to the conclusion that the widow is barred by the settlement. To hold otherwise would be to say that the wife could be barred by what her husband said, but not by what he did ; that she might be concluded by words but not by money; that the evidence of her husband, given in the suit for his personal injuries, might be used against her in a suit for his death, but that the more solemn judgment against him would not conclude her.

If the wife is in privity with her husband, it is conceded that his settlement will bind her; but if there is no privity between them as to this class of cases, then if the husband should sue and fail to recover, the wife, after his death, would not be bound by that judgment; she may bring suit and obtain a verdict, notwithstanding the husband failed in his suit. So that not only is a settlement no bar, but neither is a verdict against the husband a bar. This would not only make the statutes penal, but it would not allow the defendant to buy his peace by paying money, nor could he secure peace by making a successful defense immediately after the injury, when the recollection of the witnesses is fresh, when they are all accessible, and when the circumstances of the injury can be most certainly and truthfully portrayed. But, as in this case, five years after the injury, upon proof, that can oftentimes be only too easily secured, that the old injury has been the cause of the recent death, the defendant is again called into court. What is it to do? ITow is it to perpetuate its evidence? How is it to know whether the suit is ever to be brought or not ? How is it to know whether it is liable or not? It has been acquitted of liability to the husband, but, years after, it is sought to make it liable to the wife. In many cases it would be perfectly easy for the wife to make out a prima facie case, rely, say, upon the presumptions against railroads, and recover against the defendant who was not at fault, who has been adjudged not to be in. fault, but whose witnesses may have died, or moved away, or otherwise become inaccessible. These are not improbable results. They are certain. to follow, if the contention of the defendants in error is sound. There is a reasonable bar provided by law for small claims, for notes, for accounts, which require little or no evidence, or only written evidence; but the contention of defendant in error, if correct, will open the door of the court, years after an injury has happened, to determine questions of the most intricate character, requiring the nicest proof of exactly where the dead man was, what he was doing, what he was employed to do, who hurt him, the exact manner of the injury, and all of that elaborate and complicated balancing of conflicting evidence which is an almost invariable accompaniment of a suit for personal injuries. We can not characterize it better than by using the language of Judge Bleckley in Western Union Tel. Co. v. Nunnally, 86 Ga. 505, in discussing a statute allowing a penalty of $100 against a telegraph company. The force of what he there said is to be multiplied, because while he was considering a statute which allowed $100, we are considering cases in which the damages will not be hundreds but thousands. “ To leave the company exposed to suits for the almost innumerable transactions of this kind, for twenty years, would be simply absurd.” See also L. & St. L. R. R. v. Clark, 152 U. S. 237. It is true that, even now, under the ruling in the Bass case, these results may follow. But such cases will be exceedingly rare. Where the husband is fatally injured, and the defendant is liable, there will generally be prompt settlement or a suit, the defendant will be put on notice and can prepare for his defense. The serious consequences to which we have referred would result from a ruling that-where the husband fails to recover a verdict, or where he makes a settlement, or obtains a verdict, and years after, when he dies, the widow may sue in spite of the previous trials and accord and satisfaction, when the witnesses of the defendant, who are constantly changing, have become scattered and are inaccessible.

The settlement also operates as a bar upon considerations of public policy, interposing a statute of repose; for, if the settlement is not a bar, there is practically no statute of limitations, and oftentimes no person with whom the defendant can settle, and even after a settlement, marriage, birth of afterborn children, death of the wife, minority of the children, and the possibility that the children themselves may die during the lifetime of the injured party, all make the defendant liable to an uncertain extent, as of an uncertain date, to unknown and unknowable persons. In the nature of things, one who claims as a wife is bound by the husband’s conduct. ITis freedom from fault inures to her benefit, but his negligence is imputed to her,, when, as a quasi-substituted plaintiff, she asks the court to investigate the circumstances of his killing. If his negligence in the act is imputed to her, should not also his conduct after, the injury be imputed to her? In spite of all the recent statutes, “the husband is still the head of the family,” his life is his own, his body is his owm, and whatever right in that life the law gives to his wife must be subject to the superior right of the husband. While the law gives her the full value of that life, she takes it as he left it. If it was a valuable life, in a pecuniary sense, — if his health, his strength, his habits, were such as to give it a great earning capacity, then great is her recovery. . But if, on the contrary, he had so lived as to lessen these elements of pecuniary value, if by idleness and vice and dissipation he had shorn himself of his strength, the wife’s right therein must be taken burdened by what he has done in his lifetime. While he lives, his life and his person belong to himself, and he must use-that life and body for the support of his family. He must be left free, when injured, to settle for the wrongs which were done to him, and to him alone; he must be at liberty to adjust that wrong without the amount of his settlement- being diminished by the possibility, or probability, that the person dealing with him will have to pay a second time for the same act. The family stand to him in the relation of heirs, and, like all heirs, have no rights which can interfere with those of the living. They take what he leaves; they take under him and subject to him, and not adversely to him. Under this statute, the cause of action primarily grows out of the relation between the husband and the wrong-doer, and his rights against the wrong-doer. The full value of action is in him; only secondarily is it in the wife, and it comes to her, if it comes at all, burdened and encumbered by his conduct, his settlement, and whatever else he did in his lifetime in reference thereto. It is true she may recover the full value of his life, but that value depends on what he was, and what he did in his lifetime, and if before his death he has settled with the defendant, he has, by his own act, transmuted the value of a cause of action into dollars and cents, and deprived his family of any further value growing out of the negligence complained of.

Let us take an instance. A husband loses a limb under circumstances which entitle him to recover.. He brings suit. On the trial the judge charges the jury that they may allow the plaintiff compensation for his pain and suffering, for the mortification of living as a maimed man, for all damages arising from the impairment of his health, and from the shock to his nervous system; in addition, they will, from the tables determine what was his expectancy of life at the time of the injury, and how much his earning capacity has been diminished. They will multiply the amount of this diminished capacity by the number of years he would have lived according to the table, reduce that to its present value, and that sum, plus what they ¡allow for pain, suffering, etc., would be the amount of their -verdict. Now, in the language of Judge McCay, in Macon & W. R. R. v. Johnson, 38. Ga. 409, “it is impossible to estimate the value of a life.” Still, the law is obliged to measure pain and suffering and life in dollars and cents, and according to rules which are not intended to bankrupt the defendant. In all cases of this class the plaintiff himself consents, that the injuiy shall be valued in money. When he gets a verdict, the law has done all it can to make him whole. The limb and the health have been valued in the only way possible to the law. Theoretically, after he- gets a verdict, he has got them back, valued upon-the theory that he would have lived out the full term of his life. The jury does not give him the value of his hand for one day, but for twenty years. The jury treats him as though, by a legal certainty, he would live out liis alloted span, and thus restores him to himself and family sound and well. Exactly the same results flow from a settlement, because our Civil Code, §3935, so encourages adjustments that it “will not force parties to litigate in order to have done what they ought, and are willing, voluntarily to do.” The settlement or the verdict has atoned for the wrong of the defendant. After that, he may claim that whatever injury was done has been cured, and that he is no longer liable to the injured person or those who claim under him. The substantial grounds on which the courts must hold that the husband’s settlement bars the wife are based upon the fact that the wife’s right in the life of the husband is subordinate to what he himself has done with his life; that as his negligence is imputable to her, so his ratification and condonation of the wrong done him es-tops her; that his acceptance of payment ratifies the act, and admits that he has been made whole of his injury; that thereafter the defendant can say, he has not harmed the husband, but that payment; like pardon, relates back to the original act, and makes it as though it had not been. The settlement operates as a bar, upon considerations of a public policy encouraging compromises, which would be rendered difficult, if not impossible, under the view contended for by defendants in error.

The contention of the defendants in error means that if a settlement takes place, the defendant may be called upon to pay a second time in case of death. It means double damages. It means the statute is to be treated as penal and not .compensatory. It means that we are to lay at the door of our statute the reproach which was so often and so justly uttered against the statutes of some of the other States, as to which it was said that it was actually “cheaper to kill than to hurt.” With us, hereafter, it would mean the same thing, because for the death of the husband there would only be one recovery. For his injury and subsequent death there could be two recoveries. We have seen that statutes identical with ours in substance, having. the same object in view, and intended to give the same rights, have all, or very nearly all, been construed to mean that where the husband was injured and subsequent^ settled for theinjury, and thereafter died from the effect of theinjury, there could be-no recovery by his wife for his death. She stands in his shoes. She recovers if he could have recovered. She fails if, for any reason, he would have failed. If he consented to the injury he can not recover. If he ratifies the injury by accepting compensation, she can not recover. If by ordinary care he could have avoided the injury, she can not recover. If he obtains judgment against the defendant, she can not recover. What would have estopped him estops her. Not only would it be a hardship to require a defendant to pay double damages, but there are considerations of public policy which cry out against such a construction, —a public policy so pronounced that it would require every reasonable doubt to be resolved in its favor. If the defendant i» to pay the injured man full damages, and subsequently is to pay the full value of his life, it becomes manifest that settlement» are impossible. It would operate to deprive the injured party “of the power of settling his claim, or realizing anything from it in his lifetime. It would naturally, if not inevitably, prevent settlements, and procrastinate litigation, until it could be-determined whether death would ensue from the injury. There could be little inducement to settle without suit, because whatever might be paid to the injured party would neither bar nor diminish the claim of his representative, should death ensue. The statute should not be strained to bring about such a result, nor should it be reached unless required by the plain language of the enactment.” Littlewood v. Mayor, 89 N. Y. 24, 42 Am. Rep. 276-7. Under such a construction the law, by its own act, would encourage litigation, in spite of the maxim that “it is to the interest of the commonwealth that there should be an end of litigation.” It would make it impossible to obey the injunction, “Agree with thine adversary quickly whilst thou art in the way with him” ; for the defendant can properly ask, “Who is mine adversary?” He might be willing to settle, he may have agreed on terms, and yet he would be compelled to say to a husband and father, “It is impossible to say whether you will die as a result of these injuries or not, or whether, when you die, your wife and your children will then be living or not, or whether you will be wifeless and childless. She may consent to the settlement, but she may also die, and you may marry again. Or, the wife may die and leave you children. It is impossible to settle with them, because they are minors, and even if that were legally possible, there may be afterborn children, and all of these uncertainties must be considered in our negotiations.” Surely the law does not intend that any case shall be so inchoate that the person liable does not know to whom he may be ultimately liable, and can not adjust and settle, even when he admits liability and is willing to pay.

Judgment reversed.

All the Justices concurring, except Cobb and Lewis, JJ.