Demczuk v. Jenifer

• Decision Date: 05 May 1921
• Docket Number: 16.
• Citation: 114 A. 471,138 Md. 488
• Parties: DEMCZUK v. JENIFER.
• Court: Maryland Court of Appeals

114 A. 471

138 Md. 488

DEMCZUK v. JENIFER.

No. 16.

Court of Appeals of Maryland

May 5, 1921

Appeal from Circuit Court, Baltimore County; Walter W. Preston Judge.

Action by John Demczuk against H. Courtenay Jenifer, administrator of the estate of Evan Panyskoski, deceased. From a judgment for defendant, demurrer to the declaration having been sustained, plaintiff appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PATTISON, ADKINS, and OFFUTT JJ.

Caleb D. Cherbonnier, of Towson (Milton Dashiell, of Baltimore, on the brief), for appellant.

William P. Cole, Jr., of Towson (H. Courtenay Jenifer, of Towson, on the brief), for appellee.

OFFUTT J.

Evan Panyskoski on May 27, 1920, shot and killed Mary Demczuk at Turner's Station, in Baltimore county. Afterwards and before this suit he died, and letters of administration upon his estate were in due course issued to H. Courtenay Jenifer the appellee. Thereafter John Demczuk, the surviving husband of Mary Demczuk, brought this action against the administrator for damages resulting to him from the loss of her services as a result of her death through the wrongful act of the decedent. The declaration filed in the case is in the following form, that is to say:

"John Demczuk, by Milton Dashiell and J. Booker Clift his attorneys, sues H. Courtenay Jenifer, administrator of the estate of John Panyskoski, deceased, for that the said Evan Panyskoski, deceased, did on or about the 27th day of May, 1920, assault and beat, and with a revolver did shoot and kill, at or near Turner Station, Baltimore county, state of Maryland, Mary Demczuk, the wife of John Demczuk, the plaintiff, and that the said John Demczuk was thereby deprived of the society, comfort, and services of his said wife, Mary Demczuk, by the wrongful acts of the said Evan Panyskoski, deceased; wherefore this suit is brought, and the plaintiff claims $5,000 damages."

The court sustained a demurrer interposed by the defendant to this declaration, and, plaintiff having declined to amend, judgment was entered for the defendant. This appeal is taken from that judgment.

The only question presented by the record is whether the liability of a person, who by his wrongful act has caused the death of another, survives the death of the tort-feasor, when it has not been prosecuted to a judgment during his life, and can be enforced against his personal representatives or estate by one who was entitled to the services of the person so killed. The maxim "actio personalis moritur cum persona" is generally applicable to actions in form ex delicto, and-

"The general rule of the common law was that, if an injury were done either to the person or to the property of another, for which unliquidated damages only could be recovered in satisfaction, the action died with the person to whom or by whom the wrong was done." Broom, Legal Maxims (8th Ed.) 702.

This rule of the common law is in force in this state, except in so far as it has been changed or modified by statute. Poe, Pl. par. 593; Ott v. Kaufman, 68 Md. 56, 11 A. 580; Stewart v. United Electric L. & P. Co., 104 Md. 332, 65 A. 49, 8 L. R. A. (N. S.) 384, 118 Am. St. Rep. 410. It becomes necessary, therefore, to examine the statutes in force in Maryland to ascertain whether that rule has been changed in so far as it affects the facts of this case, and, if so, to what extent and in what manner.

The only statutes we need consider in this connection are codified as section 25, art. 75, C. P. G. L., section 104, art. 93, C. P. G. L., and article 67, C. P. G. L. Section 25, art. 75, C. P. G. L., provides that-

"No action of ejectment, waste, partition, dower, replevin, or any personal action *** shall abate by the death of either or any of the parties to such action. *** This not to apply to actions for injuries to the person where the defendant dies. ***"

Section 104, art. 93, Id., provides that executors and administrators-

"shall be liable to be sued in any court of law or equity, in any action (except for slander and injuries to the person) which might have been maintained against the deceased."

It excludes from the definition of the phrase injury done to the person "actions for arrest, false imprisonment, violation of the twenty-third, twenty-sixth, thirty-first and thirty-second articles of the Bill of Rights." Article 67, §§ 1 and 2, confers upon certain relatives of a person whose death has been caused by the wrongful act, neglect, or default of another under circumstances which would have entitled the deceased person, had he survived, to have maintained an action for the injury the right to an action in the name of the state against the tort-feasor.

In our opinion the right of the plaintiff to maintain this suit cannot be sustained under any of these statutes. By their terms section 25 of article 75, C. P. G. L., and section 104, article 93, Id., do not apply to action for "injuries to the person." The alleged cause of action in this case is the husband's loss of his wife's services as a result of her death through the wrongful act of another, and the question presented, therefore, is whether that is an action for "injuries to the person," within the meaning of the statutes referred to. There is nothing in the language of either statute to indicate that the expression "injuries to the person" was intended to be limited to injuries to the plaintiff, or indeed to any particular person or class of persons; but, on the contrary, it was apparently used to define and characterize the class of actions excluded from the operation of the statutes. Used in that sense, an action for "injuries to the person" naturally means any injury causing actual physical pain, discomfort, or disability to any person, which occasions loss or damage either to such person or to any other person entitled to the benefit of the services of the injured person.

While the loss of the wife's services, for which compensation is sought in this case, did not result from any personal injury to the plaintiff, it did result from a personal injury to the wife, and this is therefore "an action for injuries to the person," and is excluded from the operation of the statutes under consideration. This view is illustrated by the case of Mulvey v. City of Boston (1908) 197 Mass. 178, 83 N.E. 402, 14 Ann. Cas. 349, an action by the husband to recover for the loss of his wife's services as a result of personal injuries to her in which the court in construing the expression "injuries to the person" as used in a statute of limitations, said:

"The injury to the plaintiff's wife, on which his suit is founded, was an injury to her person. The first question to be determined is whether the husband's action is for an injury to the person within the meaning of the statute. The language of the statute is not restricted to actions for injuries to the person of the plaintiff, and we think it is broad enough to include all actions of tort founded on injuries to the person of any one in such relations to the plaintiff that the injury

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