Plaintiff alleges that she is the widow of Z. B. Howell, deceased, who, she alleges, died by reason of defendants' negligence in allowing the county jail to be and remain in an unhealthy condition during her husband's confinement therein. Plaintiff does not sue as the executrix, administratrix, or collector of her husband, but sues in her own right as the widow of deceased, and defendants demur on that ground. At common law, the injured party alone could maintain an action for damages, and in case of death from the injury the right of action did not survive to any one. By statute (Code, 1498) the personal representative of the deceased is allowed to prosecute an action for damages at any time within one year from the death. The demurrer should have been sustained. Code, 1498; Best v.Kinston, 106 N.C. 205.
We are not informed as to the truth of the allegations, nor is it necessary that we should be, in order to dispose of this case; but if they are true, the conditions would probably be improved by invoking the aid of the criminal side of the docket.
Judgment reversed.
Cited: Killian v. R. R., 128 N.C. 263; Bennett v. R. R., 159 N.C. 347;Hood v. Tel. Co., 162 N.C. 71. *Page 281
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