The cause of action as stated in the complaint, upon demurrer, must, as to the facts alleged, be tаken to be true. The facts alleged are substantially these: Plaintiff’s wife was suffering with a broken hip and taken to defendant’s hospital at Statesville by the plaintiff for treatment. “The defendant not only undertook and contrаcted to attend and care for her in a-proper and skillful manner as a physician and surgeon, but also undertook and contracted to provide for her a suitable and safe room in his said hospital, and to give her proper nursing and attention while an inmate of his hospital.”
The complaint further alleges that by reason of the defective condition and construction of defendant’s hospital, and especially on account of the defective condition and construction of the windows of the room where рlaintiff’s wife was placed by defendant, the rains beat into the room to such an extent that the floor of thе room was covered with *662 water to a depth o£ more than one inch on several occasions while plaintiff’s wife was a patient, and was allowed to remain so for the space of several hours, thus rendering the said room cold and damp, by reason of which the health of plaintiff’s wife was greatly impairеd, and on account of which she contracted a severe cold, which grew gradually worse, on account of the failure of the defendant to properly and skillfully treat, provide, and care for plaintiff’s wife, which cold developed into pneumonia, from which she died on or about 15 November, 1913. That the unheаlthy and improper condition of said room in which the sick wife of the plaintiff was placed by the defendant was due to the gross carelessness and negligent acts of the defendant, and his failure to have said room properly constructed and kept in repair for the purposes for which it was intended, that is to say, for the reception of sick patients while under treatment by said defendant in said hospital, and by reason оf the careless and negligent acts and failure in duty of the defendant as hereinbefore set out, this plaintiff hаs been greatly and seriously damaged and suffered great pain and mental anguish, as follows:
(a) To his feelings and^ sympathies in witnessing the agony and suffering of his said wife while lingering with such cold and pneumonia, and in the act and article of death resulting therefrom.
(b) In the loss to plaintiff of the society of his said wife, and the comfort, pleasurе, and happiness which he was accustomed to enjoy in the marital relations existing between them.
(c) In thе loss to plaintiff of the services of his said wife, who was in every way industrious, saving, and helpful to him in the management and conduct of his household affairs; the plaintiff by her death being left without any assistance and with no one to lоok after or care for the conduct of his domestic affairs.
The ground of the demurrer is that no cause of action is stated in the complaint that survived the death of the wife.
At common law the right of action for an injury to the person abated upon the death of the person injured, under the maxim, Actio personalis moritur cum persona. But causes of aсtion accrued to those who stood to the deceased in the relation of master, parent, or husband, for recovery of damages for loss of service or society.
In Baker v. Bolton, 1 Camp., 493, Lord Ellenbrough held that the husband could recоver for the loss of the wife’s society, and the distress of mind the plaintiff had suffered on her account, from the timе of the injury until the moment of her dissolution; "and,” says Mr. Tiffany, “this distinction has been followed.” Death by Wrongful Act, sec. 16, and notеs.
*663 It was further held in England in 1875 that when a passenger on a train was injured and, after an interval, died in consequence, bis personal representative might, in an action for breach of contract of safe carriage, recover the damages to his personal estate arising in his lifetime from medical expenses and loss occasioned by his inability- to attend to business. It was subsequently held in Leggatt v. Ry. (1 Q. B. D., 599), by the Queens Bench, that a prior recovery as administrator under Lord. Campbell’s Act was no bar to an action by such administrator to recover damages to intestate’s personal estate by his inability to attend to his business from the time of the injury until death, as plaintiff sued in a different right in each case.
The'Supreme Court of Michigan,
It was again held in Kentucky, where a minor son was injured by a street car and subsequently died from the injury, that the father could recover all expenses incurred for the same care in nursing, etc., and for the loss of service from the date of injury to death. In addition, we think plaintiff can reсover damages for the mental suffering and injury to his feelings in witnessing the agony and suffering of his said wife while lingering with such cold аnd pneumonia, and in the act and article of death resulting therefrom.
We see no reason why, if the husband cаn recover damages from a telegraph company for mental anguish for delay in delivering a telegram informing him of his wife’s illness, he should not recover for the mental anguish occasioned by witnessing her suffering and death against the alleged author of such suffering and death.
The demurrer is overruled, and the defendant will be allowed to answer.
Eeversed.