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line, we think they became subject to the provisions of the survivorship statutes the same as though they had been in it by force of the common law. The reasons are apparent why the Legislature should have provided as to the nature or character of the damages, in case the injured person died, it having provided that the liability should continue."

In the case of Vickers v. Cloud County, 59 Kan. 1. c. 88, the Supreme Court of Kansas in considering a case brought under the general survival act of that State to recover for the death of one who, if he had lived, would have had a cause of action under a statute passed after the former, said:

"According to the allegations of the petition and the offer of proof thereunder, the fall of the bridge and the resulting injury and death of Vickers were due to the wrongful acts and omissions of the defendants. The widow is, therefore, entitled to maintain an action against them and to recover for the death of her husband, providing he could have maintained an action against them for the injury if he had lived. [Civil Code, sec. 422.] This code provision is remedial and prospective, and is as applicable to statutory liabilities created after its enactment as to those created or existing before that time."

It will thus be seen that in the cases in which the question was directly presented and in which the courts dealt with it there is apparently no conflict in the authorities on the subject, all holding that it matters not when the statute is passed which gives an injured per son a right of action, in case of his death that cause of action is transmitted under general provisions, like ours, for the survival of actions.

The name of the cases which assume this to be the law is legion and their very number precludes their citation here.

The first proposition must consequently be held bad for the reasons given in the cases from which we

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have quoted and from the very nature and wording of section 5426, Revised Statutes 1909. No further comment seems necessary on this phase of the case, particularly in view of the fact that in the opinion really determinative of the Strottman case, Judge WOODSON recognizes the force of these decisions in ordinary cases but distinguishes them by reason of the effect of the decision in the case of Proctor v. Railroad, 64 Mo. 112. This phase of the matter falls within the scope of the second proposition as set out above.

(b). Upon the second proposition (supra) the decision in the Strottman case is really grounded.

In the opinion written by Judge BURGESS it was said (211 Mo. 1. c. 254) discussing section 2865, Revised Statutes 1899 (now section 5426, Revised Statutes 1909):

"We are unable to agree that this section has. the effect of transmitting a right of action created by section one of the Act of 1897, as it has been ruled by this court that that section does not include a claim for damages for injuries occasioned by the negligence of a fellow-servant. It will be presumed that the Legislature, at the time of the passage of the Act of 1897, was familiar with the decisions of the Supreme Court, which hold that, under section 2865 supra, the master cannot be held for injuries received by one servant through the negligence and unskillfulness of his fellow-servant. Had the Legislature desired to transmit a right of action to the representative of the deceased employee, it could have done so by proper and necessary legislation."

In his concurring opinion, Judge WOODSON states the proposition more clearly (1. c. 269, 270) as follows:

"But it has been the universal ruling of this court ever since the decision in the case of Proctor v. Railroad, supra, was handed down, that section 2865 has

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no application to and did not transmit a cause of action from a servant who was killed by the negligent acts of a fellow-servant to his wife and children, for the obvious reason that he had no cause of action against the master to be transmitted.

"The mere fact that the Legislature in 1897 created a cause of action in favor of the servant, against the master, for injuries received in consequence of the negligence of a fellow-servant, is no warrant or justification for this court to write into that section of the statute a survival of that cause of action and a transmission of it to the widow upon the death of the husband when the Legislature has failed to do so.

"If, at the time of the enactment of section 2865, the Legislature had in express terms provided that it should not apply to fellow-servants, then, I apprehend that it would not now be contended that such section would transmit a cause of action created by the Act of 1897 to the widow of the injured servant, yet that is just what this court has uniformly held the Legislature meant by the passage of that statute. [Proctor v. Railroad, supra.]"

Manifestly this is the only ground upon which the conclusion reached can be sustained. Differently stated, the position taken was that the effect of the decisions in the case of Proctor v. Railroad, 64 Mo. 112, and like cases, was equivalent to the insertion in sections 2864 and 2865, Revised Statutes 1899, of an express provision that those sections should never apply to actions for death resulting from injuries caused by the negligence of a fellow-servant. If that was the effect of those decisions the conclusion was correct. Otherwise it was not.

The decision of the Supreme Court of Wisconsin in the case of Ean v. Railroad, supra, as the quotation given therefrom discloses, is directly in point and in direct conflict with the proposition now under dis

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cussion. A like observation is substantially true of the cases of Merkle v. Bennington, supra, Racho v. Detroit, supra, Eames v. Brattleboro, supra, and Vickers v. Cloud County, supra.

In 1857 (Laws Wis., sec. 1, ch. 71) Lord Campbell's Act was substantially re-enacted in Wisconsin (Sec. 4255, R. S. Wis. 1878), the form of the first section of the statute adopted in that State being word for word like section 5426, Revised Statutes 1909 (2865, R. S. 1899), except the addition of a proviso as to the place of the injury and the courts in which the actions should be brought. In 1875 (Laws of 1875, p. 293) an act was passed by the Legislature of Wisconsin abrogating the fellow-servant rule so far as it applied to the employees of "railroad corporations.'

This act contained no provision as to the survival of the cause of action created by it and was in that respect as is the Act of 1897.

In 1879, William Gumz, while in the employment of a railway company died from injuries inflicted by reason of the negligence of a fellow-servant, and his executrix sued for the benefit of the widow, as the general law (Sec. 4256, R. S. Wis. 1878) provided she might. In this case (52 Wis. I. c. 676) the Supreme Court of Wisconsin said:

"By section 1816, Revised Statutes, every railroad corporation is made liable for all damages sustained by any agent or servant thereof, by reason of the negligence of any other agent or servant thereof, without contributory negligence on his part, when sustained within this State. In case the injury causes death, such right of action is preserved, by sections 4255-6, R. S., to the personal representative of such deceased person."

In previous decisions of that court (Cooper, Admr. v. Railroad, 23 Wis. 668; Moseley v. Chamberlain, 18 Wis. 700), it had been held, prior to the enact

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ment of the Wisconsin fellow-servant act and subsequent to the passage in that State of sections 4255-6, supra, that no recovery could be had for the death of a railroad employee caused by the negligence of a fellow-servant. Thus it will be seen that the case of Gumz v. Railroad, supra, was decided under the exact conditions, so far as statutory provisions and previous decisions of the Wisconsin Supreme Court were concerned, which existed in this State when the Strottman case was decided.

In the principal opinion in the Strottman case (1. c. 254) the impression is left that the Gumz case was decided upon a statute unlike ours. The fact is just the contrary, since the general survival statute (Sec. 4255, R. S. Wis. 1878) is identical in every word (except as to place of injury and courts having jurisdiction) with section 5426, Revised Statutes 1909, and the fellow-servant section (Sec. 1816, R. S. Wis. 1878) provides simply for liability for damages "sustained by any agent or servant" of a railroad corporation "by reason of the negligence of any other agent or servant thereof," then prescribing the circumstances under which such injured employee can recover and forbidding contracts of exemption.

As early as 1851 (Iowa Code, 1860, section 2501) there existed in Iowa a statutory provision to the effect that "when a wrongful act produces death, the perpetrator is civilly liable for the injury."

In 1862 the Legislature of that State enacted (Laws of Iowa, 1860, Extr. Sess. 1862, p. 198, sec. 7) the following:

"Every railroad company shall be liable for all damages sustained by any person, including employees of the company, in consequence of any neglect of the agents or by any mismanagement of the engineers, or other employees of the corporation, to any person sustaining such damage.'

In 1871, the Supreme Court of Iowa (Philo v.