Braley, J.
If upon an opening, the plaintiff fails to state a case, ordinarily the defendant may request that a verdict be ordered in his favor. The presiding judge, in his discretion, then either may give a decision or wait until the plaintiff’s, or the entire evidence has been introduced, before deciding the question. But, although no demurrer had been filed, or request made, it was not too late for the defendant to move to dismiss, if the declaration and the facts stated in the opening showed that the cause of action did not survive, as the court was left without jurisdiction. Allin v. Connecticut River Lumber Co. 150 Mass. 560, 568, and cases cited. Merriam v. Currier, 191 Mass. 133. Corcoran v. Higgins, 194 Mass. 291.
By the common law, the right of the husband to recover damages for an injury to his wife, whereby either her services or consortium became lost, perished with the death of the wrongdoer. The injury inflicted, being the act of the tortfeasor, who escaped by death, his executor or administrator could not be held, because the executor or administrator had committed no wrong in his personal capacity, and the plea, which must have been not guilty, raised only the issue of the decedent’s guilt. Wilbur v. Gilmore, 21 Pick. 250, 252. But this rule having been modified by statute, the question is, whether such an action survives, under R. L. c. 171, § 1. This section, which follows previous revisions, provides, that “. . . actions of . . . tort for assault, battery, imprisonment, or other damage to the person ” shall not abate by death. Gen. Sts. c. 127, § 1. Pub. Sts. c. 165, § 1. Unless the case comes within the last clause, the plaintiff is not relieved. It has uni formly been held since the enactment of St. 1842, c. 89, § 1, to which this clause runs back for its origin, that the nature of the damages sued for, rather than the form of remedy, is the test. By this construction, the language, “ or other damage to the person,” includes such damages only as result from direct bodily injury, but excludes consequential damages suffered by those who are injured from a wrongful interference with their rights arising from the negligence of the decedent. Smith v. Sherman, 4 Cush. 408, 413. Cutter v. Hamlen, 147 Mass. 471. Wilkins v. Wainwright, 173 Mass. 212, and cases cited. Dixon v. Amerman, 181 Mass. 430. If the common law doctrine of unity of husband and wife, by which she was deemed a part of his person, has been almost wholly abrogated by legislation, yet the right to her exclusive conjugal fellowship still remains, and he may recover damages for its impairment by the wrongful acts of strangers. Nolin v. Pearson, 191 Mass. 283, 285, 286. But, while this right has been preserved, if during coverture she suffers personal injury, whether it results from the direct act of the decedent by the use of force, or is caused by his negligence, she alone, by reason of our statutes conferring upon her absolute control over her person and the right to sue as if sole, can maintain an action for damages, which upon recovery become her separate property. Nolin v. Pearson, ubi supra. Duffee v. Boston Elevated Railway, 191 Mass. 563, 564. But where the husband also brings suit, because the disability arising from the tort has deprived him of either her services or matrimonial companionship, his right to recover rests upon the ground that the wrong suffered by him, while personal in effect, is regarded as purely consequential in character. Barnes v. Hurd, 11 Mass. 59. Kelley v. New York, New Haven, & Hartford Railroad, 168 Mass. 308, 311.
It is plain that under the statute such an injury cannot be classed as “ damage to the person,” and the motion to dismiss was granted properly.
Exceptions overruled.