¶1If the cause of action stated in the complaint is to be regarded as a breach of the obligation implied in the emp|oyment of the defendant as a physician, the right of action was vested in the plaintiff, as the husband of his wife, and not as administrator. The contract to perform his professional duty in a skilful manner was made with the husband, and not the wife. #
¶2In an action founded upon this breach of duty, the husband might recover the damages he had sustained by reason of the loss of the society and aid of his wife. It may not be improper to state, that at the same circuit at which this issue was tried, an action brought by the husband in his own right, for the same case of mal-pradice, was brought to trial, and the plaintiff recovered such damages as the jury thought fit to award to him for the loss of his wife.
¶3If the action had been founded upon the wrong committed by the defendant, and the personal suffering that resulted to the wife, she could not have sued alone, if living; but the husband must have been joined as a plaintiff with her. (1 Chit. Pl. 73.) It would, indeed, have been the action of the husband, though the wife, being the meritorious cause, must have been joined with him as plaintiff. Upon the death of the wife, the cause of of action, so far as related to her, did not survive at common law.
¶4The act of 1847, (Sess. Laws, 1847, p. 575,) upon which the plaintiff relies, only gives an action to the personal representatives of the person injured and dying, when the person so injured, if living might have maintained an action, and recovered *325damages for the same injury. The common law gave the hus- j band and the father a right to recover of the wrong-doer the pecuniary injury he had sustained by reason of the killing of ] his wife or child. The husband had availed himself of this right of action, in this very case, to recover damages for the loss of his wife. The object of the act of 1847 was, to extend the same rule to the wife and the child, so that they also might recover the pecuniary damages they had sustained by the wrongful killing of the husband or the father. Hence, the proper rule of damages, in all such cases, is to inquire what the party killed was worth to his family. The husband has already had the benefit of this same rule as applicable to the same injury of which he now complains. It would be an obvious perversion of the intention of the legislature to allow a second action to be sustained for precisely the same injury.
¶5Nor is there anything in the language of the act referred to which would warrant such an action. The wife, if living, could not have sustained an action for the injury. The action, as we have seen, must have been either in favor of the husband alone, or the husband and wife as joint plaintiffs. The case is, therefore, neither within the terms nor the intent of the statute.
¶6The demurrer must be allowed, and the complaint dismissed, with costs to be taxed.