Ott v. Kaufman

Robinson, J., delivered the opinion of the Court. 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 spend 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 1 of Article 2 of the 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, &c. 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.” ⁵⁸ Hambly vs. Troth, Cowp., 374; 1 Saunders, 216a; Wentworth vs. Cock, Adm’r, 2 Per. &