State Ex Rel. Smith v. Hagerstown & Frederick Railway Co.

Stockbridge, J., delivered the opinion of the Court: There is but a single issue in this case, and that has been practically concluded by numerous previous adjudications of Ihi« Court, so it will be sufficient for the decision of this case to refer to some of those adjudications. ⁷⁹ The suit was brought in the name of the State of Maryland for the use of Jemima Smith against the Hagerstown and Frederick Railway Company for the killing, by negligence of the employees of the company, of Margaret I. Smith, the illegitimate child of the said Jemima Smith. A demurrer was entered upon the part of the defendant, which was sustained by the Circuit Court for Frederick County and, the plaintiff not amending, a judgment was there entered for t-he defendant, and from that judgment the present appeal was taken. The only point to he considered is, whether the mother of an illegitimate child can maintain an action for the wrongful killing of the child. All the prior decisions of this Court were carefully examined and collected by Judge Urner in the case of Barron v. Zimmerman, 117 Md. 296 , and the history of actions of a similar character will bo found fully set out in the opinion filed in that case.

At common law, an illegitimate child could neither inherit nor he entitled to receive in the course, of distribution from either parent, and conversely the parent could have no claim, to any interest or right which the child, might have possessed, and this applies as well to cases arising out of a wrong done, as it did to property to which the 'illegitimate child had acquired a right, title or become possessed of, or for a death caused by reason of a tort. Under the common law the right of action died with the person so, injured ox killed. But following the passage of what is commonly referred to as Lord Campbell's Act, the statute was passed in this State by which a new right of action not theretofore; known was given, and the Maryland statute will be found in Code, Article 67, Sec. 2. Under this, the Legislature provided that an action might bo maintained for the benefit of the wife, husband, parent and child of the person whose death shall have been so