190 Ky. 526 | Ky. Ct. App. | 1921
Opinion op ti-ib Court by
Affirming.
This was an action by Chas. C. Gross against the appellee, James Ledford, to recover damages for the alleged alienation of the affections of the wife of Gross, and the consequent desertion of him, whereby he lost the benefits of her affections, society and assistance as a wife, or in other words, was wrongfully deprived by the malicious acts of appellee of his conjugal rights, which are denominated in the phrase of the ancient common law as consortium. There was no averment in the petition of any criminal conversation with the wife, and hence it was purely an action for alienating the affections, and the consequent enticement of her away from her husband. After instituting his action, and before the trial or a judgment, Gross died and his administrator, as his personal representative, sought to have the action revived and to prosecute same as such representative. This the •circuit court denied, holding that the action did not survive, but abated with the death of the injured husband ajid dismissed the petition, and from the judgment this appeal is prosecuted by the personal representative, and the only question for decision is whether such an action survives the death ,of the party who has received the injury upon which it is based, and the answer to this question necessarily depends upon whether or not the cause of action stated in the petition survives the death of the complaining party.
At the common law, whether, an action survived the death of one of the parties depended upon the nature of the action and the damages sought, and not upon the form of the remedy, and accordng to the principles of
“No right of action for personal injury or injury to real or personal estate shall cease or die with the person injuring or injured, except actions for assault, 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 othc-r 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 upon contract.”
It will be observed that the statute does not provide that any particular remedy for a personal injury shall survive, but the right or cause of action for a personal injury shall survive, except for injuries which arise from assault, slander, criminal conversation and so much of the cause of action for malicious prosecution as entitled a recovery for injury to the person. The excepted rights of action died with the person injuring or injured and the statute was evidently enacted in contemplation of the common law doctrine that the survival of the cause of action depended upon the nature of the action and the damages sought, and not the form of the remedy. The question involved here does not, of course, have any reference to the various causes of action which are given by statutes to the widows, children and personal repre
Section 10, Ky. Stats., has been construed in several decisions of this court when applied fo certain states of facts, but the exact question for decision in this case has not heretofore beep determined or considered by this court, and decisions in other jurisdictions, upon the subject of a survival of the cause of action here insisted upon, have been controlled by the particular statutes in force upon the subject in those jurisdictions, and hence are not authorities here, but some assistance may be had by analogy from the previous decisions of this court concerning the statute when applied to other states of fact. In the construction of this statute, the same rules should be controlling as in the construction of any other statute, the chief among which is to give to it the meaning and effect which the legislature intended that it should have. Doubtless with this view, although the statute provides that an action or cause of action for assault only shall not survive, this court has unhesitatingly included in the exception “action for assault” any cause of action for a battery or assault and battery done with the intention to do violence, as well as for assault and the latter term has been treated as if it was assault and battery. Shields v. Rowland, 151 Ky. 136; Anderson v. Arnold, 79 Ky. 370; Lewis v. Taylor Coal Co., 112 Ky. 845; Winnegar v. C. P. Ry. Co., 85 Ky. 547. The foregoing has been done, although there could be no difficulty in drawing a distinction between an assault and a battery, but, of course, a cause of action for a battery could not exist without including the fact of an assault, and an absurd meaning would have to be given to the statute if it should be held ■that under its terms a cause of action, for a mere assault, should die with the death of one of the parties, while the cause of action for the battery which followed the assault, shpuld •survive. A cause of action for a libel, according to a literal reading of the statute, survives, while a cause of action for slander dies with one of the parties. An essential element constituting the cause of action for libel is that the defamation be written or exhibited by pictures or otherwise published, and language when written may be the basis of an action for libel, when if spoken w.ould
An action by the husband for damages for the alienation of the affections of his wife is of the same nature and genus as an action for criminal conversation with her, just as an action for assault and an action for a battery are of the same nature, and as an action for libel and one for slander are of the same genus. The actions for alienations of affections and for criminal conversation are so nearly of kin that a plaintiff may embrace and rely upon both in the same petition against a defendant. Civil Code, section 83; Merritt v. Cravens, 168 Ky. 155. They are, however, in judicial procedure, two distinct remedies, but the purpose of the prosecution of each is the same
Judge Newman, in his work upon pleadings, arrives at the'conclusion that personal injuries suffered by.reason of the violation of relative rights do not survive. Section 174b, of .his work, discussing the effect of our statutes relating to the survival of actions, is as follows:
“Although these statutes mention the action crim. con. as one, which dies with the person and omit or fail to mentiop seduction or any other of the injuries, which may be done to the relative rights of the person, yet as the statute by its terms provides only, that such actions as are for injuries to the person or to real or personal estate, shall survive, an action for seduction, or for enticing away an infant child or servant or apprentice, and all actions for injuries to the relative rights of the person only, it would’seem must die with the person.” An action for alienation of the .affections being of that class of injuries, which occur to the relative rights of the person, according to the view of Mr. Newman would not survive. In this contention, he is supported by the decisions of the courts in several states, which have statutes providing that actions for personal injuries, or words of similar import, shall survive. In those jurisdictions, it has been held, that a personal injury, within the meaning of those statutes, is an injury suffered by the person of one — such as is caused by some physical force — as distinguished from an injury through a violation of a relative right. Billingsley v. St. Louis, etc. Ry., 84 Ark. 617; Davis v. Nichols, 54 Ark. 358; Hey v. Prime, 197 Mass. 474; Norton v. Sewall, 106 Mass. 143; Lehman v. Farwell, 95 Wis. 185. While our statute, section 10, supra, is
The judgment is therefore affirmed.