#### Sunanday, Appellant, *v.*McKently.

*Survival of actions*— Suit *for criminal conversation■*— Death *of wrongdoer*— Act *of June 2k, 1895, P. L. 286.*

1. A right of action for criminal conversation does not survive tbe death of the wrongdoer.

2. The provisions of the Act of June 24, 1895, P. L. 236, that “any right of action which may hereafter come into being by reason of injury wrongfully done to the person of another, shall survive the death of the wrongdoer, and may be enforced against his executor or administrator,” applies only to cases of injuries to the person, which may or may not result in death, and has no application to a suit for criminal conversation.

Argued March 3,1914.

Appeal, No. 402, Jan. T., 1913, by plaintiff, from judgment of C. P. Berks County, August Term, 1913, No. 43, refusing to take off nonsuit in case of Francis W. Sunanday v. Deborah C. McKently.

Before Fell, C. J., Brown, Mestbezat, Potter and Elkin, JJ.

Affirmed.

Trespass for criminal conversation. Wagner, J., filed the following opinion:

In this case suit was brought by the plaintiff against the defendant, Deborah K. McKently, executrix of the estate of Jonathan McKently, deceased, to recover damages in an action of crim. con. The plaintiff alleged that Jonathan McKently in his life-time had debauched his wife, Lillie E. Sunanday. This suit was brought after the death of the said Jonathan McKently, against the defendant as executrix. A nonsuit was granted at the time of the trial on the ground that the death of Jonathan McKently abated the suit.

It is admitted by plaintiff that prior to the Act of June 24, 1895, P. L. 236, an action like the present one, upon the death of the wrong-doer, did not survive against the estate. He claims, however, that under said act this *534action can be maintained against tbe wrongdoer’s executrix.

At the argument of this case counsel for plaintiff earnestly contended that an action of crim. con. is one at common law. That it is governed by tbe principles of tbe common law and that as at tbe common law bus-band and wife are one, a criminal assault upon or debaucbment of tbe body of tbe plaintiff’s wife would be an injury wrongfully done to the person of tbe busband in tbe eyes of tbe law, and is tbe same as if tbe busband bad been assaulted, and therefore redressable at common law in an action of trespass vi et armis.

A complete answer to this contention is found in Drew v. Peer, 93 Pa. 234, where it is held: “Where damages are claimed by a busband for tbe loss of bis wife’s services, and for medical attendance resulting from a personal injury to her, case is tbe proper form of action.” Tbe reason for this, together with tbe authorities therefor is stated in full by Mr. Justice Sterrett on page 241. Plaintiff’s contention is that tbe meaning of tbe term in tbe aforesaid act of tbe injury stated as done to tbe person of another which is to survive tbe death of tbe wrongdoer, and may be enforced against bis executrix or administrator, is sufficiently broad to include an action of tbe kind under consideration. This, however, is giving to tbe phrase an “injury wrongfully done to tbe person of another,” entirely too broad a meaning. It is there used in restrictive sense as is clearly shown by reading both sections of tbe act. That is, tbe personal injury that is to survive tbe death of tbe wrongdoer is such an injury as may or may not result in death. In Boyd v. Snyder, 207 Pa. 330, on page 334, tbe court says: “Tbe Act of June 24, 1895, P. L. 236, has no application to a suit for malicious prosecution. It is clearly intended to apply only to cases of injuries to tbe person, which may or may not result in death.” See also Patterson v. Williams, 52 Pa. Superior Ct. 299, 302.

Rule to take off nonsuit is discharged.

*535The court entered judgment of nonsuit, which it subsequently refused to take off.

Plaintiff appealed.

*Error assigned,*among others, was in refusing to take off the nonsuit.

*W. B. Bechtel,*for appellant.

*Wilson 8. Bothermel,*and *Snyder & Zieber,*for appellee were not heard.

March 23,1914:

Per Curiam,

The judgment is affirmed on the opinion of Judge Wagner.