State v. Parks

• Decision Date: 11 June 1925
• Docket Number: 32.
• Parties: STATE, FOR USE OF STASCIEWICZ ET AL., v. PARKS.
• Court: Maryland Court of Appeals

129 A. 793

148 Md. 477

STATE, FOR USE OF STASCIEWICZ ET AL., v. PARKS.

No. 32.

Court of Appeals of Maryland

June 11, 1925

Appeal from Court of Common Pleas of Baltimore City; W. S Symington, Jr., Judge.

"To be officially reported."

Action by the State of Maryland, for the use of Tillie Stasciewicz surviving widow, and others, against Bessie L. Parks. Judgment for defendant on demurrer, and plaintiffs appeal. Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, PARKE, and WALSH, JJ.

B Harris Henderson, of Baltimore, for appellants.

J. Kemp Bartlett, Jr., of Baltimore (Bartlett, Poe & Claggett, of Baltimore, on the brief), for appellee.

WALSH J.

The question raised by this appeal is whether the provision of article 67 of the Code (commonly called "Lord Campbell's Act") that "every such action shall be commenced within 12 calendar months after the death of the deceased person," is a condition essential to the right to maintain the action given by the statute, or is merely a limitation of the remedy which must be pleaded to defeat the action.

The declaration in this case was filed on June 2, 1924, and it alleges that Peter Stasciewicz, the deceased husband and father, respectively, of the equitable plaintiffs, was injured on September 10, 1922, by the negligent operation of the defendant's automobile, and that as a result of these injuries he died three days later. The defendant filed the general issue plea on July 18, 1924, and thereafter, on January 22, 1925, she filed a petition asking leave to withdraw the general issue plea, and to file a demurrer, and on the same day an order of court authorizing this was passed. On the following day a demurrer was filed raising the defense that the declaration was bad, because it showed on its face that it was brought under the provisions of article 67 of the Code, and it also showed that the suit was not commenced until more than 12 months after the death of the said Peter Stasciewicz, and on the same day the plaintiff filed a motion that the demurrer be not received. On January 27, 1925, the learned court below overruled the motion of ne recipiatur, and sustained the demurrer; and from this action the plaintiff appeals.

During the argument before this court counsel for the plaintiff conceded that the overruling of the motion of ne recipiatur was within the discretion of the trial court, so that the only point to be determined by us is whether or not the court's action in sustaining the demurrer was correct. At common law no recovery could be had for the negligent killing of a person, and to remedy this situation the Statute of 9 and 10 Victoria, c. 93 (Lord Campbell's Act), was passed in England in 1846, under the terms of which certain designated relatives of the deceased person were given a right of action for his wrongful killing. Six years later the General Assembly of Maryland passed a similar statute chapter 299 of the Acts of 1852 (now codified as article 67 of the Code), and statutes of the same import now exist in practically all of the states of the Union. Section 2 of the Maryland act reads as follows:

"Every such action shall be for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused and shall be brought by and in the name of the state of Maryland for the use of the person entitled to damages; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the above-mentioned parties, in such shares as the jury by their verdict shall find and direct; provided, that not more than one action shall lie for and in respect of the same subject-matter of complaint; and that every such action shall be commenced within twelve calendar months after the death of the deceased person."

The plaintiff contends that the last requirement of this section that "every such action shall be commenced within twelve calendar months after the death of the deceased person," is merely a limitation on the time within which the action should be brought, and as such can only be availed of by a plea of limitations, while the defendant insists that the provision is one of the essential elements of the action, and that a declaration which shows on its face that the action was not brought within the prescribed time is bad on demurrer. This question has not, so far as we are advised, been passed upon in this state. However, it has been decided that chapter 299 of the Acts of 1852 created a new cause of action in this state. In Tucker v. State, etc., 89 Md. 479, 43 A. 780, 46 L. R. A. 181, this court, in speaking of that statute said: "The injury for which the equitable plaintiffs are compensated is the pecuniary loss sustained by reason of the death of the person through the wrongful act, neglect or default of the defendant. The statute, therefore, properly speaking, was not passed, as is sometimes said of it, to remove the operation of the common-law maxim, actio personalis moritur cum persona, as it has not undertaken to keep alive an action which would otherwise die with the person, but, on the contrary, has created a new cause of action for something for which the deceased person never had, and never could have had, the right to sue--that is to say, the injury resulting from his death."

See, also, Stewart v. United Elec. L. & P. Co., 104 Md. 332, 341, 65 A. 49, 8 L. R. A. (N. S.) 384, 118 Am. St. Rep. 410.

And since the statute created a new cause of action in Maryland, it would seem to be obvious that if a plaintiff sets out facts which place the claim beyond the terms of the statute, his declaration will be bad on demurrer.

In most jurisdictions the courts have held that all the provisions of these statutes, including that fixing the time within which the action must be brought, are essential to the maintenance of the suit. The rule regarding the time requirement was thus stated by the Supreme Court in the case of "The Harrisburg," 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358:

"The statutes create a new legal liability, with the right to a suit for its enforcement, provided the suit is brought within twelve months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all. * * * Time has been made of the essence of the right, and the right is lost if the time is disregarded. The liability and the remedy are created by the same statutes, and the limitations of the remedy are, therefore, to be treated as limitations of the right."

And substantially the same construction has been placed upon similar statutes in the following cases: Partee v. St. Louis & S. F. R. Co., 204 F. 970, 123 C. C. A. 292, 51 L. R. A. (N. S.) 721; B. & M. R. R. Co. v. Hurd, 108 F. 116, 47 C. C. A. 615, 56 L. R. A. 193; Stern v. La Compagnie Generale Transatlantique (D. C.) 110 F. 996; Kavanagh v. Folsom (C. C.) 181 F. 401; L. & N. R. R. Co. v. Chamblee, 171 Ala. 189, 54 So. 681, Ann. Cas. 1913A, 977; Rodman v. Mo. Pac. Ry. Co., 65 Kan. 645, 70 P. 642, 59 L. R. A. 704; Brothers' Adm'r v. Rutland R. Co., 71 Vt. 48, 42 A. 980; Railway v. Hine, 25 Ohio St. 629; Dennis v. Railroad Co., 70 S.C. 254, 49 S.E. 869, 106 Am. St. Rep. 746; George, Adm'r, v. C. M. & St. Paul Ry. Co., 51 Wis. 603, 8 N.W. 374; Hanna, Adm'r, v. Jeffersonville R. R. Co., 32 Ind. 113; Foster v. Yazoo, etc., R. R. Co., 72 Miss. 886, 18 So. 380; Murphy v. C. M. & St. Paul Ry. Co., 80 Iowa, 26, 45 N.W. 392; Lambert v. Ensign Mfg. Co., 42 W.Va. 813, 26 S.E. 431; Radezky v. Sargent & Co., 77 Conn. 110, 58 A. 709; Kerley v. Hoehman, 74 Okl. 299, 183 P. 980, 8 A. L. R. 141; Martin v. Pittsburg Ry. Co., 227 Pa. 18, 75 A. 837, 26 L. R. A. (N. S.) 1221, 19 Ann. Cas. 818; Taylor v. Cranberry Iron Co., 94 N.C. 525; Poff v. N.E. Telegraph & Telephone Co., 72 N.H. 164, 55 A. 891; Dowell v. Cox, 108 Va. 460, 62 S.E. 272; Kirton v. Atlantic Coast Line Co., 57 Fla. 79, 49 So. 1024; Anthony v. St. L., I. M. & S. R. Co., 108 Ark. 219, 157 S.W. 394; Barker v. Hannibal, etc., R. Co., 91 Mo. 86, 14 S.W. 280. And see, also Tiffany, Death by Wrongful Act, § 121; Am. & Eng. Ency. of Law, vol. 7, page 875 (2d Ed.); 8 R. C. L. 801 (section 80); 48 L. R. A. 639, note; 18 C.J. 1235.

While as we noted above, this court has not heretofore construed the time provision of the Maryland "Lord Campbell's Act," that very provision was before the Federal District Court for the Southern District of New York in the case of Swanson v. Atlantic, Gulf & Pacific Co. (D. C.) 156 F. 977, and the court, in its opinion, after...