Owens-Corning Fiberglas Corp. v. Garrett8/28/1996
on to the former substitution, the latter has sparked the present issue.
PH has asserted that Jeanette Hohman's wrongful death action cannot survive her death unless the substitute plaintiff is also capable of instituting a wrongful death action individually. Md. Code (1974, 1995 Repl. Vol.), § 3-904 (a) of the Courts & Judicial Proceedings Article limits primary wrongful death actions to those brought "for the benefit of the wife, husband, parent, and child of the deceased person." Section 3-904 (b) limits secondary beneficiaries to actions "for the benefit of any person related to the deceased person by blood or marriage who was wholly dependant upon the deceased." Because William Hohman was Victoria Croghan's step-father, not her natural father, and she was not "wholly dependant" upon him, PH argues that Croghan cannot serve as the substitute plaintiff and that, therefore, the suit must abate.
At least partially, PH's argument is based upon language from our case of Harvey v. Baltimore & Ohio R.R. Co., 70 Md. 319, 17 A. 88 (1888). This interesting antique is a relic of a different era and absolutely inapplicable to the case sub judice. Mrs. Harvey was killed crossing a railroad track. Mr. Harvey sued for damages, but died before the suit's resolution. Our predecessors determined that in the absence of a statutory provision, Mr. Harvey's suit abated on his death. Id. at 325, 17 A. at 89. It is critical to our purposes to note, however, the Harvey Court's prefatory comment: "the plaintiff [Mr. Harvey] died before the Act of 1888, ch. 262 was passed, and the question is not therefore affected by the provisions of that Act." Id. at 324, 17 A. at 89. The Court did not say, but a review of that Act makes clear, that had the new law been in effect at the time of Mr. Harvey's suit, the opposite result would have obtained. The new law 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 final judgment and satisfaction."
Chapter 262 of the acts of 1888. This new survival statute supplemented the previously existing law, which permitted a variety of actions to survive the death of the plaintiff. Md. Code (1860), Art. 2, § 1 ("ejectment, waste, partition, dower, replevin, or any personal action, including appeals from judgments rendered by justices of the peace . . . ").
The subsequent history of ch. 262 is easy to trace. It was originally codified at Art. 75, § 33A, but immediately recodified at Md. Code (1888), Art. 75, § 25. It continued as Md. Code (1904), Art. 75, § 26, Md. Code (1911), Art. 75, § 26, Md. Code (1924), Art. 75, § 30, Md. Code (1939), Art. 75, § 30, and Md. Code (1951), Art. 75, § 30. The comprehensive code revision of 1957 apparently failed to continue the provision and it was "lost" until six years later. In 1963, a corrective bill returned the provision to the statute books as Md. Code (1957, 1963 Cum. Supp.), Art. 75, § 15B. In 1973, as part of the overall code revision process, this section was recodified as Md. Code (1974), § 6-401 of the Courts & Judicial Proceedings Article:
"Sec. 6-401. Survival of Actions.
(A) At law. -- A cause of action at law, whether real, personal, or mixed, except slander, survives the death of either party.
(B) In equity. -- A right of action in equity survives the death of either party if the court can grant effective relief in spite of the death."
The revisor's note makes clear that § 6-401 (a) is intended merely to comb
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