Reed v. Maley

74 S.W. 1079, 115 Ky. 816, 1903 Ky. LEXIS 158

• Court: Court of Appeals of Kentucky
• Decided: June 5, 1903
• Status: Published

Opinions

Opinion op the court by

JUDGE PAYNTKR

Affirming.

The petition makes substantially the following averments: That the plaintiff was a married woman; that on October 19, 1898, whilst sitting near the window in her house, the defendant approached near it, and proposed to her to have sexual intercourse with him; that she indignantly refused the proposal; that the defendant thereby com. mitted a trespass against her person; that she was frightened, and caused great mortification and shame; and in con- ' sequence" of which she was greatly excited and damaged. : It was not averred that the defendant entered her house or was in reach of her, so as to put her in fear. The court sustained a demurrer to and dismissed the petition on the ground that it did not state a cause of action. In an action for an assault the petition must allege the facts which constitute the assault, and in alleged trespass it is essential to state the facts which constitute it. Stivers v. Baker, 87 Ky., 508, 10 R., 523, 9 S. W., 491. No facts were averred which showed that the defendant made an assault upon the plaintiff, hence did riot inflict any injury upon her person.

The sole question presented for consideration is, will a cause of action lie in favor of a woman against a man who solicits her to have sexual intercourse with him? If it will, the petition states a cause of action; otherwise it does not. This is a novel case, but the novelty of the case is no reason for denying a recovery if the cause of action can be made to rest upon some sound principle of law. The fact that learned counsel have been unable to cite any case involving the question here for our determination strongly conduces to show that the legal profession for centuries has labored under the impression that a civil action will not, lie on a state of facts like those averred in the petition; for it is probable that, during past generations, applications have been made to them for the institution of actions like this one. If -such applications have been made, it is probable that they have been made by good and virtuous women; and certainly there is no moral or social reason why the members of the legal profession should not have instituted such actions to recover damages for the wounded feelings and humiliation good women have suffered from such proposals, if such an action in their judgment could have been maintained. The solicitation for such intimacy is not equiva- ¡ lent to charging a woman with the want of chastity; therefore, if made under circumstances that would make a charge of unchastity a slander and actionable, no action for slander could be maintained on account of such solicitation. The. solicitation was not a libel, and of course not actionable upon that ground. It was not a breach of contract, as in Chapman v. Western Union Telegraph Company, 90 Ky., 265, 12 R., 265, 13 S. W., 880, where there was a failure to deliver a telegram, which resulted in an injury to the feedings, etc. So the principle upon which actions for slander and libel and the Chapman case are based can not be the foundation upon which to rest a recovery in this action. Neither does the principle upon which actions for malicious prosecutions or false arrest are founded furnish a basis for recovery. As I there was no assault upon or trespass against the person/ of the plaintiff, and no physical injury produced, it seems to us that no recovery can be had. It is well settled that; mental suffering may be taken into consideration in esti-r mating damages in cases of physical injury. In such cases there may be a recovery for physical and mental suffering arising from physical injury. The objection to a recovery for injury occasioned without physical impact is the difficulty of testing the statements of the alleged sufferer, the remoteness of the damages, and the metaphysical character of the injury considered apart from physical pain.

In Wadsworth v. Western Union Telegraph Company., 86 Tenn., 695, 8 S. W., 574, 6 Am. St. Rep., 864, the court had under consideration the question of allowing damages for mental suffering unaccompanied by .physical injury. Judge Lurton, then a member of that court, in a dissenting opinion said: “The reason why an independent action for such damages can not and ought not'to be sustained is found in the remoteness of such damages, and in the metaphysical character of such an injury considered apart from- physical pain. Such injuries are generally more sentimental than substantial. Depending largely upon physical and nervous' condition, the suffering of one under precisely the same circumstances would be no test of the suffering of another. Vague and shadowy, there is no possible standard by which. such an injury can be justly compensated or even approximately measured. Easily simulated and impossible to disprove, it falls within all the objections to speculative damages, which are universally excluded because of their uncertain character. That damages so imaginary, so metaphysical, so sentimental, shall be ascertained and assessed by a jury with justness, not by way of punishment to the defendant, but as mere compensation to the plaintiff, is not to be expected. . . . Mental distress is or may be in some cases as real as bodily pain, and it as certainly results from language not amounting to an imputation of crime, yet such actions have always been dismissed as not authorized by the law as it has come down to us, and as it has been for all time administered.” The only instance in which this court seems to have refused to apply this rule is in Chapman v. Western Union Telegraph Company. There are a class of cases in this jurisdiction where the court has allowed the jury to award punitive damgaes, where the emplo. railroad have wrongfully ejected persons from a trai rude, offensive or high-handed manner. Those eases, ever, are no authority for a recovery in this case. As we have said, the defendant did not accuse the plaintiff of the want of chastity, but showed a purpose to seduce her from the path of virtue,/ If A should solicit B, a reputable citizen, to join him in the commission of the crime of arson, or robbery, B would indignantly reject the solicitation. He might become excited, and feel humiliated and ashamed to have been thus approached, and might have worried over it for days and nights thereafter; but could he maintain an action against A for thus approaching him with such an infamous proposition? We think not. Suppose a bawd should solicit a man upon a public street to have sexual intimacy with her; he certainly could not maintain a civil action against her. If an action could be maintained by a woman against a man for such solicitation, the same right to maintain one would exist in his favor. Whilst he might not suffer the same anguish and humiliation on account of such solicitation as the woman, yet the right of. recovery would be the same. The amount of it would only be determined by reason of the difference in effect such a solicitation would have upon one or the other. Society and the moral sentiments of the people strongly condemn conduct like that with which the appellee is charged, but there is no principle of law known to us which will enable a party to maintain a civil action upon facts like those here under consideration.

Newell v. Whitcher, 53 Vt., 589, 38 Am. Rep., 703, is relied upon as an authority authorizing a recovery. It appeared that the plaintiff was a blind music teacher; that she went to the house of the defendant to give lessons to his daughht lie assigned her to a room for the night; that the night he stealthily entered her room, sat on her leaned over her person, and made repeated solicitation |to her for sexual intimacy, which she repelled. The court jjheld that her private sleeping room during the night was ’exclusive; that trespass quare clausum fregit would lie against him; that sitting on her bed and leaning over her was an assault, and that she was entitled to recover exemplary damages. The principle of that case does not apply, because the defendant was guilty of trespass quare clausum fregii, and an assault upon the plaintiff’s person. The recovery was evidently allowed on account of these wrongs.

In Bennett v. McIntire (Ind. Sup.), 23 N. E., 78, 6 L. R. A., 736, the husband sued the defendant in trespass, alleging that the latter with force and arms entered upon plaintiff’s premises and attempted to seduce his wife by wickedly soliciting and attempting to persuade her to submit to carnal intercourse. The evidence showed that defendant entered upon plaintiff’s premises with his license, and recovery was denied, the court holding that the averments as to the defendant’s conduct after he entered upon the premises was laid by way of aggravation of damages, and not as a ground of the action. The denial of recovery was not placed upon the ground that a cause of action was in the wife, not in the husband, for the wrong which she suffered. The attorney who brought the action, and the court which tried it, evidently labored under the impression that no cause of action existed except for the trespass on the premises, and that the defendant’s other acts did not constitute a cause of action, but were only available as an aggravation of damages.

It has been urged in consultation that solicitation to commit adultery is a common-law offense, and may be indicted

as such; and, after that conclusion is reached, the proceeds to the effect that, as Maley transgressed mon law,, thereby being guilty of an indictable off cause of action arose. In support of that conclusion, op on Non-Contract Law, section 71, is cited. It read follows: “The doctrine, in general terms, is that the ci, wrong and the criminal are legally distinct things, though both may proceed from one act of the offender. If the injury is of a nature falling on the entire community, an individual, suffering from it only as others do, can maintain no action against the wrongdoer, even should it in degree casually press more heavily upon him than upon others. But he who suffers a special damage may have his suit, though by reason of the public harm the defendant is also indictable.” And also section 466, Kentucky Statutes, is cited, which reads as follows: “A person injured by the violation of any statute may recover from the offender such damage as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed.” It is also urged that the cases of the City of Henderson v. Clayton, 22 R., 283, 57 S. W., 1, 53 L. R. A., 145, and Hutcheson v. Louisville & Nashville R. R. Co., 108 Ky., 615, 22 R., 361, 57 S. W., 251, support that view. The doctrine stated by Bishop does not apply to the facts of this case. If one carries away another’s property with the felonious intention to convert it to his own use, or if one person commits *an assault upon another, the wrongdoer may be indicted therefor, but that fact does not relieve him of liability in a civil action for damages the injured party may have suffered in his estate or person. This doctrine can not be applied, in disregard of other well-known rules of law, to sustain a recovery where no cause of action exists. Section 466 of the Kentucky Statutes is of the same ;he rule announced by Bishop, except its operation :ted to violations of statutes. As there is no statouncing a penalty for solicitation to commit adulit can not be claimed to have any application to the under , considerad pn. The statute was applicable to cases of the City of Henderson v. Clayton, and Hutcheson v. Louisville & Nashville R. R. Co., and those cases are of the character to which the doctrine stated by Bishop and the provisions of the statute apply. In the former, the city of Henderson, in violation of the statute, maintained a pesthouse by reason of which Mrs. Clayton and her family took smallpox, and suffered in person and estate. In the latter case Hutcheson was compelled by the Louisville & Nashville Railroad, in violation of the Constitution, to pay excessive freight charges, and for the damages sustained in consequence thereof he was adjudged the right to recover. The court does not admit (the question not being here) that the appellee could have been indicted at common law for the alleged offense of solicitation to commit adultery, but, assuming he could have been, it is of the opinion that that fact would not enable the appellant to maintain the action.

(June 9, 1903.)

The judgment is affirmed.