Stewart v. United Electric Light & Power Co.

³³³ McSherry, C. J., delivered the opinion of the Court. 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 and Power Company of Baltimore, and the Maryland Telephone and 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 tinner and 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-n'arr. 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 orfly could be recovered in satisfaction, the action died with the person to whom or by whom, ³³⁴ the wrong Was done. So fixed was this rule that it crystallized into a maxim. It was considerably altered, however, by the Statute of 4 Edw., 3 C. 7, de bonis asportatis in vita testatoris, which though in force in Marylan d prior to the adoption of the Act of 1798, ch. 101 (Kennerly's ex. 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 guity, 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 for.ce though adopted at widely different periods of time.

The one, beginning with the Act of 178s, ch. 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, the Act of 1852, ch. 299, almost a literal transcript of Lord Campbell’s Act (9 and 10 Vic., ch. 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 ³³⁵ 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 further progressive enactment was adopted. The Acts of 1783, ch. 80, sec. 1; 1801, cli. 74, sec. 38; 1813, ch. 149, sec. 3 (1 Dorsey’s Laws-, pp. 229, 463, 631); 1849, ch. 317, sec. 1, were brought together, condensed and codified in sec. 1, Art. 2 of the Code of i860, 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 sub-ch. 8, sec. 3, of the Act of 1798, ch. 101, reproduced in the Code of i860 in Art. 93, sec. 103, 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 of the plaintiff, because sec. 1, Art. 2 of the Code of i860, 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 i860. 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 ch. 44 now included in sec. 103, ³³⁶ Art. cjj of the Code of 1904, .narrowed the scope of the words “injuries to the person” contained in the exception’ clause of sec. i-, Art. 2, of the Code of i860, 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 further broadened by the Act of 1888, ch. 262, which forms sec. 25, Art. 75 of the Code of 1888 and sec. 26 of the same Art. 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 representa ves 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 defaidt from abating by the death, of the. plaintiff;' but the clause added to- sec. 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 sec. 25 of Art. 75 of the Code of 1904, whilst the body of the section is a transcript of sec. 1, Art. 2, of the Code of i860. The' effect of this legislation is to prevent an action commenced in- his lifetime for the recovery of damages for personal inj uries caused by negligence or default, from abating-b'y the death of 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 j-udgment becomes an asset of the decedent for the benefit of his creditor^, if he has any; or for the benefit of his legatees and-distributees. ■ Whilst this, legislation relates to the non-abatement of actions actually pending when the plaintiff dies, there are other statutes which concern: the right of executors ³³⁷ and administrators to sue, and which have a direct bearing on the question here involved. The Act of 1798, ch. 101, sub-ch. 8, sec. 5 (1 Dorsey's Lazes, p. 390), transcribed in almost exact words in sec. 105, Art. pj of the Code of i860, provided that: “Executors and administrators shall have full power and authority to commence and prosecute any personal action whatever, at law, or in equity (as the case may require), which the testator or intestate might have commenced and prosecuted, except actions of slander, and for injuries or torts done to the person, &c.” This precise language is reproduced in the Code of i860 except the words “or torts;” but that omission did not change the scope of the provision in a case like this. If this section had remained unmodified it is manifest that the administrator in this case could not have commenced the pending action, because it is an action for injuries done to the person, and such actions were not within the purview of the enactment.

But a very material alteration was made by the Code of 1888. By sec. 10/j of Art. pj of that codification or sec. ioj of the Code of 1904 it was declared: “Executors and administrators shall have full power to commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted, except actions of slander; and they shall be liable to be sued in any Court of law or equity, in any action (except for slander and injuries to the person) which might have been maintained against the deceased,” &c. Thus in 1888 for the first time executors and administrators were given full power to commence suits for the recovery of damages for personal injuries sustained by their testator or intestate in his lifetime. Full power to commence such suits, except for slander and except against the executor or administrator of the person who caused the injury, must, if the terms mean anything, include such a case as this.

Executors and administrators may commence and prosecute any personal action whatever which the testator or intestate might have commenced, except actions of slander. Now the intestate could have brought a suit in his lifetime for the injuries sustained by him as set forth in the ³³⁸ narr. And as this is not a suit for slander, nor a suit against the executor or administrator of a deceased defendant, why cannot his administrator commence and prosecute the same action? It surety needs no discussion to show that the pending case is clearly within the remedial provisions of the Code of 1888 and 1904; and we doubt whether a question would have been raised to the contrary, were it not for the Act 0/1852, ch. 299, taken from Lord Campbell’s Act and found in the Codes of i860, 1888 and 1904.

In the last named Code it is secs. 1 and 2, Art. 67. The Act is a familiar one, but in order that the argument may be carried along with clearness, those portions which are relevant to this investigation-will now be quoted. W-e read in sec. 1 these words: “Whenever the. death of a person shall be caused by a wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.” Sec. 2: “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 persons entitled to damages; and in every such action the jpry 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 * * * shall be divided among 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, &c.” The points of difference between this statute and the provisions of the Code giving to executors and administrators full power to commence and prosecute any personal action whatever which the testator or. intestate might ³³⁹ have commenced