Anderson v. Arnold's ex'r

79 Ky. 370, 1881 Ky. LEXIS 37

• Court: Court of Appeals of Kentucky
• Decided: April 12, 1881
• Status: Published

Opinion

-JUDGE PRYOR

delivered the opinion of the court.

Section 1 of chapter 10, General Statutes, provides: “no fight of action for personal injury, or injury to real or personal estate, shall cease or die with the person injuring or the person injured, except actions for assault and battery, •slander, criminal conversation, and so much of the action for malicious prosecution as is intended to recover for the personal injury; but for any injury other than those excepted, an action may be brought or revived by the personal representative or against the personal representative, heir, or devisee, in the same manner as causes of action founded on contract.”

• The appellant, James Anderson, instituted his action in fhe Hardin circuit court, in which he alleges that on the - day of -, in the year 1878, the appellee’s testator negligently and' recklessly, but not intentionally, ■inflicted a wound upon the body of the plaintiff (appellant) with a pistol; in other words, that the appellee’s testator •shot the plaintiff with a pistol, causing him great pain and .bodily suffering, and for which he asks a judgment, &c.

On the hearing of the cause, a demurrer was filed and •sustained to the petition on the ground that the cause of action died with the person, and no action could be maintained against Arnold’s personal representative.

Counsel for the plaintiff proceeded upon the idea that the ■ injury must be intentional in order to constitute it an assault and battery, and if involuntary, the remedy was by an action on the case: as if A shoot at B and wmunds C, the shooting of C being unintentional, is not an assault and battery on C, but the result of an assault on B.

The. various statutes authorizing actions by the widow, heirs, and personal representative of one whose life has-been lost by the negligence of another are not involved in the question presented in this case, and there is no reason, why the court should depart from the common law rule in-defining what constitutes an assault and battery, although the appellant may have sustained great injury. The action-of trespass lies for injuries committed by force, and generally are only for such as are immediate. (Chitfy’s Pleadings,, vol. i, p. 190.)

When tfíe act complained of, and not the consequences-of the act, causes the injury, the remedy is trespass and not case. “Nor,” says Chitty, “is the motive, intent, or-design of the wrong-doer towards the complainant the criterion as to the form of the remedy; and it is clear that the ■ mind need not in general concur in the act that causes an injury to another; and if the action occasion an immediate injury, trespass is the proper remedy without reference to the intent.” (Chitty’s Pleadings, vol. 1, p. 147.)

When on uncocking a gun, it went off and accidentally wounded a bystander, it was held that the action was properly brought in trespass. So when the defendant, in firing-his musket, accidentally wounded the plaintiff, trespass and not case was the remedy.

The familiar illustration given in the elementary books as to the distinction between trespass and case settles the question here. When a log is thrown in the highway, and in the act of throwing it strikes one, it is a trespass; but if, when placed in the highway, one is injured by falling over it, case is the proper remedy. So of the lighted squib that was thrown in the market space, and afterwards thrown ■ about by others in self-defense; the new impetus given to it by others was held to be a continuance of the original force, and trespass was the remedy. Following, therefore, ■this common law definition, it was an assault and battery committed upon the plaintiff, although the shot was fired at a third person; and the meaning of the words assault and battery will not be restricted to an actual and intentional beating of another so as to authorize the recovery. If an assault and battery at common law, the action does not survive, and that it was there can be no doubt.

Judgment affirmed.

(Eden v. Lexington Railroad Co., 14 B. M. ; Covington Railway Co. v. Packer, 9 Bush.)