Ott v. Kaufman

• Decision Date: 09 December 1887
• Citation: Ott v. Kaufman, 68 Md. 56, 11 A. 580 (Md. 1887)
• Parties: OTT v. KAUFMAN.
• Court: Maryland Court of Appeals

11 A. 580

68 Md. 56

OTT v. KAUFMAN.

Court of Appeals of Maryland

December 9, 1887

Appeal from court of common pleas, Baltimore city.

Action by Gottfried Ott, to recover damages for an assault and battery on his wife, against Joseph Kaufman, and, defendant dying pending the suit, against his executrix, Anna Mary Kaufman.

D'Arcy Paul, for appellant.

W Pinkney Whyte, for appellee.

ROBINSON J.

This is an action by a husband to recover damages for an assault and battery on his wife, per quod he lost her services and was obliged to expend money for medical and other attendance upon her. Pending the suit the defendant died, and the question is whether the action survives against his executrix; and this depends upon the construction of section 146, art. 50, Code, which provides that personal actions of every kind, except actions for personal injuries and slander shall survive against the executor or administrator of the testator or intestate. Actions for personal injuries are thus expressly exempted from the saving clause of the statute, and this would seem to be conclusive as to the question now before us. The argument, however, is that the plaintiff is not seeking to recover damages for the personal injury to his wife, but consequential damages, for the loss of her services, etc. This is true, but the injury to his wife is after all, the foundation of the action; and the question whether the action survives on the death of the defendant depends upon the nature of the action itself, and not upon the character of the damages claimed. At common law, personal actions of every kind abated on the death of the sole plaintiff or sole defendant, and, if the action was founded on contract, a new action would lie against the executor or administrator; but if the action was founded on a tort, for a wrong committed by the defendant, it did not survive,--the maxim being actio personalis moritur cum persona. Humbly v. Trott, Cowp. 374; Wheatly v. Lane, 1 Saund. 216 a; Wenthworth v. Cock, 2 Perry & D. 257. In the language of Lord MANSFIELD, the wrong and the wrong-doer were buried together. So, at common law, an action would lie in the name of the husband and wife for the personal injury to the wife, and another action in the name of the husband to recover consequential damages for the loss of her services; but neither of these actions survived on the death of the defendant. And when the Code says an action for a...