Hollett v. Wilmington Trust Co.
| Decision Date | 04 May 1934 |
| Parties | HOLLETT v. WILMINGTON TRUST CO. et al. |
| Court | Delaware Superior Court |
HOLLETT
v.
WILMINGTON TRUST CO. et al.
Superior Court of Delaware. New Castle.
May 4, 1934.
Action by George W. Hollett against the Wilmington Trust Company and another, executors of Eli Nichols, deceased. On defendants' demurrer to the declaration.
Demurrer sustained.
LAYTON, C. J., and RODNEY and REINHARDT, JJ., sitting.
William H. Bennethum, 3d (of Marvel, Morford, Ward & Logan), of Wilmington, for plaintiff.
Clarence A. Southerland (of Ward & Gray), of Wilmington, for defendants.
Superior Court for New Castle County, No. 228, September Term, 1933.
Demurrer to Declaration.
LAYTON, C. J., delivering the opinion of the Court:
The plaintiff's declaration alleges that the defendants' testator, Eli Nichols, alienated and destroyed the affection of the plaintiff's wife, whereby the plaintiff lost her comfort, fellowship, society, aid and assistance.
To the declaration the defendants have demurred specially, contending that the cause of action abated with the death of Eli Nichols, and does not survive under Rev. Code 1915, § 4154, which is as follows,
"In all personal actions, except actions for assault and battery, defamation, malicious prosecution, or any injury to the person, or upon penal statutes, the cause of action shall survive to and against the executors, or administrators, of the person to, or against whom, the cause of action accrued. * * *"
The precise question for determination, therefore, is whether the alienation of the affection of a wife is an injury to the person of the husband which, under the excepting clause of the statute, abates upon the death of the wrongdoer; or, is such a violation of the right of a husband to the consortium of his wife, an injury to a property right from which a cause of action arises which survives under the general language of the statute.
The statute, substantially in its present form, was enacted in 1829, and it should be construed with reference to the principles of the common law in force at the time of its passage. 59 C. J. 1039; State v. Donovan, 5 Boyce, 40, 90 A. 220. Words used in a statute which have a definite and settled meaning at common law are presumed to be employed in the same sense, and will be so construed, unless a contrary intent clearly appears. 59 C. J. 1039; Petts v. Ison, 11 Ga. 151, 56 Am. Dec. 419; Garrison v. Burden, 40 Ala. 513; Russell v. Sunbury, 37 Ohio St. 372, 41 Am. Rep. 523.
That, at the common law of this period. the classification of actions was well defined and understood, sufficiently appears in 1 Chitty Pl. (Ed. 1825) 59. The distinction between actions for injuries to the person, and to personal and real property is carefully drawn.
The ancient maxim of the common law, actio personalis moritur cum persona, once applicable alike to contractual and delictual duties and obligations, at the time, had been with respect to the survival of contractual rights and duties, narrowed greatly by natural forces, judicial reasoning and decision, at work in the common law, but in the field of tort, the first relaxation of the maxim was accomplished by the statute 4 Edw. 111 c. 7, giving executors a remedy where there was an asportation of, or damage done, to chattels of the testator; but it is to be noted that the statute did not give the executor a right of action for injuries to the person or character of the testator, nor a right of action against executors. The estates of decedents were not made liable for trespass until later, and this was by the application of the doctrine that actions based on property do not die with the person, subject, however, to the limitation that the tort complained of, in order to give a right of action as against the representative of the wrongdoer, must operate to the increase of his estate. 3 Street, Foundations, 70; Ilambly v. Trott, Cowp; 371; Phillips v. Homfray, 24 Ch. D. 439. So, Chitty, supra, declared the law to be,
"In the case of injuries to the person, whether by assault, battery, false imprisonment, slander or otherwise, if either the party who received or committed the injury die, no action can be supported either by or against the executors or other personal representatives; for the statute 4 Edw. 111 c. 7, has made no alteration in the common law in this respect."
And, page 82,
"At common law upon the death of the wrongdoer, the remedy for wrongs ex delicto, and unconnected with contract, in general determines, and as the statute 4 Edw. 111, c. 7, does not give any remedy against personal representatives, we shall find that few actions in form ex delicto, and in which the plea would be not guilty, can be supported against the executor or administrator of the party who committed the injury."
The authority for these conclusions is Hambly v. Trott, supra. This great case, decided by Lord Mansfield in 1776, held that the action of trover did not survive...
To continue reading
Request your trial