Harvey v. Baltimore & Ohio Railroad

Robinson, J., delivered the opinion of the Court. 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, ch. 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 apjiellant, this is fully covered by Ott vs. Kaufman, Exec’x, 68 Md., 56 . 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, sec. 1, Art. 2.

Cregin vs. Brooklyn Crosstown R. R. Co., 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 vs. The Metropolitan District Railway Co., 30 L. T. N. S., 165; 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, here there has been a breach of contract, which has caused a loss, which has fallen upon the personal estate.” And on appeal to the Exchequer Chamber, 32 L. T., 26, Coleridge, C. J., said: “This is a clear case.

It appears to me to he plainly an action ex ³²⁵