Stewart v. United Electric Light & Power Co.

• Decision Date: 15 November 1906
• Citation: 65 A. 49,104 Md. 332
• Parties: STEWART v. UNITED ELECTRIC LIGHT & POWER CO. et al.
• Court: Maryland Court of Appeals

65 A. 49

104 Md. 332

STEWART v. UNITED ELECTRIC LIGHT & POWER CO. et al.

Court of Appeals of Maryland

November 15, 1906

Appeal from Superior Court of Baltimore City.

Action by Redmond C. Stewart, administrator, against the United Electric Light & Power Company and another. From a judgment for defendants, plaintiff appeals. Reversed, and new trial ordered.

Argued before McSHERRY, C.J., and BRISCOE, BOYD, PEARCE, SCHMUCKER JONES, and BURKE, JJ.

Aubrey Pearre, Jr., and Herbert B. Stimpson, for appellant.

George Weems Williams, for appellees.

McSHERRY C.J.

This is an appeal from the superior court of Baltimore City. Mr Redmond C. Stewart, the administrator of George W. Walters deceased, brought suit against the United Electric Light & Power Company of Baltimore and the Maryland Telephone & Telegraph Company to recover damages for injuries received by the decedent through the wrongful act, neglect, and default of the defendants. It is alleged in the narr. that Walters was in his lifetime a tinnerand roofer by trade, and that whilst engaged in work on the roof of a house in Baltimore he came in contact with a disused wire of the telephone company, which crossed the aforesaid roof after being in touch with a charged wire of the light and power company, and that by that contact he received an electric shock which threw him to the ground and seriously injured him, from which injury, after suffering for several hours great pain and sickness, he died the same day. In consequence of the said acts of the defendants "the said George W. Walters suffered severe mental and physical pain and great damage, both in person and estate." One of the defendants pleaded not guilty, and the other demurred to the declaration. The demurrer was sustained, and judgment was thereupon entered in favor of the defendants for costs. From that judgment this appeal has been taken.

The single question before us is: Did the cause of action, which, according to the averments of the narr., accrued to the deceased in his lifetime from the alleged wrongful act and negligence of the defendants, abate when he died? or did it survive, so that suit upon it might be instituted and maintained by his administrator? At the common law the right of action arising from an alleged wrongful act and negligence of the character charged in the narr. before us would have abated upon the death of the person thus injured. It was a principle of the common law that, if an injury were done either to the person or property of another for which damages only could be recovered in satisfaction, the action died with the person to whom or by whom the wrong was done. So fixed was this rule that it crystallized into a maxim. It was considerably altered, however, by St. 4 Edw. III, c. 7, de bonis asportatis in vita testatoris, which, though in force in Maryland prior to the adoption of Acts 1798, c. 101 ( Kennerly's Ex'r v. Wilson, 1 Md. 107), has no application to this case. Where the cause of action was founded on any malfeasance or misfeasance, was a tort, or arose ex delicto--where the declaration imputes a tort done either to the person or property of another-- and the plea must be not guilty, the rule was "actio personalis moritur cum persona." Note 1, Wheatley v. Lane, 1 Wms. Saund. 216. But statutes have been adopted in Maryland, as well as in many, if not most, of the states of the Union, and fashioned after similar enactments in England, which have materially changed the common-law rule; and the question involved on this record comes down to the inquiry as to whether the legislation of this state has abrogated that rule as it would have applied to this case, since, if the rule has not been abrogated or modified, it will defeat the pending action. Now, there are two distinct lines of legislation on this subject, both of which are in force, though adopted at widely different periods of time. The one, beginning with Acts 1785, c. 80, has relation to the survival of certain personal actions instituted in the lifetime of the plaintiff, but which would have abated at the common law upon his death. The other, Acts 1852, c. 299, almost a literal transcript of Lord Campbell's act (St. 9 & 10 Vict. c. 93), gives a right of action under certain conditions to designated relatives of a deceased person, but not to his personal representatives, when death has been caused by a wrongful act or by negligence. The pending action has not been brought under the act of 1852, but we shall have occasion, later on, to allude to that statute, both with a view to elucidate or define the scope and meaning of the survival statutes by contrasting their provisions with its terms and obvious purpose, and to determine whether it be true, as insisted by the appellees, that the act of 1852 is the only existing legislation which authorizes a suit to be brought for the recovery of damages caused by a wrongful or negligent act resulting in death. A brief analysis of this legislation now becomes necessary.

There has been a gradual development and growth in the legislation on this subject in Maryland. For a period extending over a little more than a century the statutes bearing upon the question concerned chiefly actions which had been instituted during the life of the parties, and provided, among other things, that in certain enumerated instances the death of the plaintiff should not abate the suit; but in 1888 a farther progressive enactment was adopted. Acts 1785, c. 80, § 1, Acts 1801, c. 74, § 38, Acts 1815, c. 149, § 3 (1 Dorsey's Laws, pp. 229, 463, 632), and Acts 1849, c. 517, § 1, were brought together, condensed and codified in section 1, art. 2, of the Code of 1860, which reads: "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 slander or for injuries to the person." Laying aside for the moment chapter 101, subc. 8, § 5, Acts 1798, reproduced in the Code of 1860 in article 93, § 105, the provisions saving from abatement certain pending actions instituted in the lifetime of the plaintiff expressly excluded actions for slander and actions for injuries to the person. These last-named actions, therefore, abated upon the death of the plaintiff, precisely as they would have abated at the common law. But no other personal actions abated upon the death or the plaintiff, because section 1, art. 2, of the Code of 1860, unequivocally declared that no "personal action," except actions for slander and for injuries to the person, should abate by the death of either or any of the parties to the suit. If the pending suit had been brought by the plaintiff's intestate, and thereafter the intestate had died, the suit, being "for injuries to the person," would have abated upon his death, as the law stood upon the adoption of the Code of 1860. Owing to conditions which existed at the outbreak of the Civil War, notably the arrest of citizens by military authority without legal process, the Legislature at the special session of 1861 by chapter 44 (now included in section 103, art. 93 of the Code of 1904), narrowed the scope of the words "injuries to the person," contained in the exception clause of section 1, art. 2, of the Code of 1860, and accordingly broadened the class of personal actions which would not abate by the death of the plaintiff. This class of personal actions was still farther broadened by Acts 1888, p. 414, c. 262, which forms section 25, art. 75, of the Code of Public General Laws of 1888, and section 26 of the same article in the Code of 1904. By that enactment it was provided that: "No action hereafter brought to recover damages for injuries to the person by negligence or default shall abate by reason of the death of the plaintiff, but the personal representatives of the deceased may be substituted as plaintiff and prosecute the suit to final judgment and satisfaction." This saved every suit to recover damages for injuries to the person arising from negligence or default from abating by the death of the plaintiff; but the clause added to section 24, art. 75, of the Code of 1888, by the adoption of that Code, caused "actions for injuries to the person where the defendant dies, and actions for slander" to abate. This same clause is found in section 25, art. 75, of the Code of Public General Laws of 1904, whilst the body of the section is a transcript of section 1, art. 2, of the Code of 1860. The effect of this legislation is to prevent an action commenced in his lifetime for the recovery of damages for personal injuries caused by negligence or default from abating by the death of the plaintiff before final judgment.

It is apparent, therefore, that the statutes, thus far considered have relation only to a cause of action which the plaintiff himself had in his lifetime and upon which he had instituted suit whilst living. Hence these statutes give no new cause of action, but merely prevent a subsisting and a pending one from abating by the death of the plaintiff. That cause of action is in such instances devolved upon the executor or administrator, and, when ripened into a judgment, becomes an asset of the decedent for the benefit of his creditors, if he has any, or for the benefit of his legatees and distributees. Whilst this legislation relates to the nonabatement of actions actually pending when the plaintiff dies, there are other statutes which concern the right of executors and administrators to sue, and which have a direct bearing on the question here involved. Acts 1798, c. 101, subc. 8, § 5 (1 Dorsey's Laws, p. 390), transcribed in almost exact words in section 105, art. 93, of the Code of 1860, provided that: "Executors and administrators shall have full...