State v. Baltimore & O.R. Co.

• Decision Date: 01 March 1889
• Parties: STATE, TO USE OF HARVEY, v. BALTIMORE & O. R. CO.
• Court: Maryland Court of Appeals

17 A. 88

70 Md. 319

STATE, TO USE OF HARVEY, v. BALTIMORE & O. R. CO.

Court of Appeals of Maryland

March 1, 1889

Appeal from circuit court, Baltimore county.

Martha Harvey was killed October 16, 1886. This suit, to the use of Edward Harvey, her husband, was instituted December 10, 1886. It was removed from Baltimore city on the affidavit of defendant, and was tried in the circuit court for Baltimore county at March term, 1888. Under the instructions from the court, a judgment was rendered for defendant, which, on appeal at April term, 1888, was reversed, and a new trial ordered. 14 A. 685, 688. On November 3, 1888, Edward Harvey the cestui que use, died. Thereupon his death was suggested, and a petition was filed by Edward H. Harvey, his administrator, asking that he be "admitted as an equitable plaintiff in the further prosecution of this suit for the recovery of such damages as the estate of the said Edward Harvey, deceased, suffered by reason of the death of his said wife." Another petition was also filed by Susannah V. Harvey, a daughter of the late Martha Harvey setting forth that she had suffered a pecuniary loss by reason of her mother's death, and asking that she be admitted as an equitable plaintiff. It was claimed below that the suit died with the person of the equitable plaintiff; and the court, adopting this view, overruled the motion of each petition, and ordered a judgment of nonsuit. The appellants contend (1) that this is not a suit to recover for personal injuries to the equitable plaintiff, but is based on the statutory right of action to recover for the pecuniary loss suffered by him by reason of the death of his wife; and rely upon "the general rule of survival, that, in the case of a wrong which has caused a loss or diminution to the estate the right of action survives;" (2) that, as the suit is brought in the name of the state, the death of the equitable plaintiff does not abate the suit.

Argued before MILLER, STONE, IRVING, BRYAN, MCSHERRY, and ROBINSON, JJ.

Albert Ritchie, D. G. McIntosh, and Ed. I. Clark, for appellants.

John K. Cowen, W. Irvine Cross and J. I. Yellott, for appellee.

ROBINSON J.

This is an action by the husband to recover damages for the death of his wife, who was killed by an engine while she was attempting to cross the track of the defendant company. Pending the suit the plaintiff died, and the question is whether the action thereby abates. The plaintiff died before the act of 1888, c. 262, was passed, and the question is not therefore, affected by the provisions of that act. As to the first point relied on by the appellant, this is fully covered by Ott v. Kaufman, 68 Md. 56, 11 A. 580. There the suit was brought by the husband to recover damages for an assault and battery on his wife, per quod he lost her services, and upon the death of the defendant the court held the suit abated. Such actions, say the court, abated at common law upon the death of the sole plaintiff or sole defendant; and the Code, which provides for the survival of personal actions, expressly excepts from its operation actions for personal injuries. Old Code, § 1, art. 2. ^[1] Cregin's Case, 83 N.Y. 596, the court said was decided upon the language of the New York statute, which is altogether different from our statute. Then, as to Potter v. Railroad, 30 Law T. (N. S.) 765, there the suit was originally brought by the wife as executrix of her husband, and the demurrer to the declaration was overruled, on the ground that the action was, in substance, an action ex contractu. BRAMWELL, J., said: "It is clear that this action is, in substance, one of contract. Now,...