Opinion
Decided March, 1879.
Assumpsit cannot be maintained against the administrators of a deceased surgeon to recover damages arising from unskilful treatment of a patient.
ASSUMPSIT. The question reserved was, whether this action could be maintained against the administrators for unskilful treatment of the plaintiff by the deceased.
A. F. L. Norris, for the plaintiff.
Mugridge, for the defendants.
The precise point here presented has been decided in Vittum v. Gilman, 48 N.H. 416, and we find no good reason to doubt the correctness of that decision.
It is conceded that if the action were in tort it could not be maintained; but the plaintiff claims that, being in contract, a different rule prevails.
The general doctrine, to which this case forms no exception, is, that actions for the redress of personal injuries only do not survive, and this without regard to the form. It is true, as a general proposition, that actions in form ex contractu survive, but this is due rather to the substance of the action than to its form. There are actions, such as arise from the negligence of all attorney, or of a coach proprietor, where the plaintiff seeks to recover damages, which survive, but in these the primary cause of complaint is the injury to property and rights of property, and the personal injury is incidental. The line of demarcation, separating those actions which survive from those which do not, is, that in the first the wrong complained of affects primarily and principally property and property rights, and the injuries to the person are merely incidental, while in the latter the injury complained of is to the person, and the property and rights of property affected are incidental. This distinction is recognized in all the authorities. Broom Max. 702; Com. Dig., "Administration," B. 15; Hambly v. Trott, Cowp. 375; Chamberlain v. Williamson, 2 M. S. 408; Stebbins v. Palmer, 1 Pick. 71; Smith v. Sherman, 4 Cush. 408; Wade v. Kalbfleisch, 58 N.Y. 282, 285, 287; Lattimore v. Simmons, 13 S. R. 183; Chitty Pl. 67, 90; Bouv. Inst. 2755, 2756.
In the present case, there is no suggestion of injury to the property or property rights of the plaintiff. Her only complaint is of her personal injuries by the unskilfulness of the deceased, and the action cannot be maintained.
Case discharged.
FOSTER, J., did not sit: the others concurred.