#### BOLICK v. RAILROAD.

(Filed May 9, 1905.)

Action for Wrongful Death — Pleadings—^-Amendment— Abatement — Action for Personal Injuries — Merger.

1. As a cause of action for death by wrongful act cannot accrue till the death, it cannot be set up by an amendment to an action instituted by the deceased himself for injuries which subsequently resulted in his death.

2. A cause of action for personal injuries abates upon the death of the plaintiff, though the injury subsequently results in death.

3. When death occurs pending an action for personal injuries, such cause is merged in the action for the death, and the only remedy is that given under section 1498 of the Code.

ActxoN by Erank Bolick against the Southern Eailway Company, heard by Judge T. A. McNeill at the July Term, 1904, of the Superior Court of Catawba County. The Court granted defendant’s motion that the action abate by reason of the death of the plaintiff, and the administrator of plaintiff appealed.

*371 8elf é Whitener and. T. M. Hufham for tbe plaintiff.

8. J. Krvin for tbe defendant.

Clark, C. J.

Tbis was an action begun in May, 1903, for personal injuries sustained by plaintiff by reason of tbe alleged negligence of tbe defendant. Tbe plaintiff died in April, 1904, and at May Term following, bis administrator asked to be substituted as party plaintiff and allowed to prosecute tbe action, alleging that the personal injuries sued for caused tbe death of bis intestate. Tbe defendant moved the court that tbe action abate by reason of tbe death. Tbis last motion was allowed and tbe administrator appealed.

Tbe action for personal injuries was maintainable at common law and abated upon the death of tbe plaintiff. Tbe right of action for death caused by tbe wrongful neglect or default of another was first conferred by Lord Campbell’s Act, 9 & 10 Victoria, which begins by expressly reciting that at common law action for such cause could not be maintained. With some variations that statute has been adopted in probably every State of tbe Union. It has been uniformly -held that such statutes confer a new right of action which did not previously exist. 8 A. & E. Enc. (2 Ed.), 858. In tbis State an action for death by wrongful act was first given by ch. 39, Laws 1854, which now with some modifications is Tbe Code, sections 1498, 1499 and 1500. Tbe history of tbis legislation and summary of decisions is fully given in Killian v. Railroad, 128 N. C., 261.

As the cause of action for the wrongful death could not accrue till the death, it could not be set up by an amendment to tbis action which was instituted by the plaintiff himself. Gillam v. Ins. Co., 121 N. C., 369; Powell v. Allen, 103 N. C., 46; Bynum v. Commissioners, 101 N. C., 412.

It is equally clear that the cause of action for personal injuries abated upon the death of the plaintiff though “the injury subsequently resulted in death.” Killian v. Railroad, *372 supra. In Harper v. Commissioners, 123 N. C., 118; Scarlett v. Norwood, 115 N. C., 286, and Hannah v. Railroad, 87 N. C., 351, it was held that’ a cause of action for a personal injury did not survive the death of the injured party, the court in the latter case saying that Peebles v. Railroad, 63 N. C., 238, did not apply since the adoption of The Code, section 1490. It is provided by section 1491: “The following rights in action do not survive * * * 2. Causes of action for false imprisonment, asault and battery or other injuries to the person, where such injury does not cause the death of the injured party.” “Where such injury does not cause” means simply “unless such injury shall cause” sthe death of the injured party. The appellant argues that in as much as the expression “where such injury does not cause the death of the injured party,” and death here resulted ultimately from such cause, that this action did not abate. But we are of opinion that such inference cannot be drawn and that the statute meant no more than the action for personal injury could not be maintained after the death of the injured party unless the injury caused the death, in which case an action could be brought under section 1498. If an action could be maintained, notwithstanding the death, for the injuries resulting in death, there would be two actions for the death, one accruing'to the administrator, the recovery wherein to be applied as general assets, and the other, also by the administrator, the recovery in which would be applied “not as assets,” but would go in distribution to the next of kin. In the first case the death would be the proof, and the climax of the injuries sustained and we should have two actions by the same party, the administrator, to recover upon substantially the same cause of action.

Nor do we see any reason why if the injured party die, from other causes, the action for personal injuries should abate (as is admitted), but if he ultimately die from the injuries it should not abate. We understand the words in *373Code, section 1491 (2), providing for the abatement of actions for injuries to the person “where such injuries do not cause the death of the injured party,” not as a provision by implication that such actions survive, but as a recognition that (under The Code, sec. 1498) in case of the death of the injured person from such injuries an action is now expressly given by statute. Such other action, counsel stated, has been brought and is now pending. In that action appropriate relief can be bad.

The plaintiff relies upon Schlicting v. Wintgen, 25 Hun., 626, in which it was held “It is no defense to an action to recover for the wrongful killing of the intestate that be bad in bis life time recovered a judgment against the same defendant for the personal injuries which resulted in bis death.” We think this was correctly held, for there the death was a cause of action accruing subsequent to the judgment, but when the death occurs pending an action for personal injuries, of which the death is the greatest, ive think such cause is merged in the cause of action for the death and that the only remedy, under our statute, is that given under section 1498, and that the pending action for the lesser injuries abates.

No Error.