129 Ky. 471 | Ky. Ct. App. | 1908
Opinion of the Court by
Affirming.
Appellants complain of a judgment of the Barren circuit court sustaining a demurrer to their petition as amended, and dismissing the action. The appeal, therefore, presents for our consideration but one question, viz.: Do the facts alleged in the petition state a cause of action?
The original petition is as follows: ‘ ‘ The plaintiffs, Nettie May Reed and her husband, I. W. Reed, state that during the month of September, 1907, the defendant, Harry Ford, came to their house'in Glasgow, Ky., during the darkness of the night, in a drunken condition, and in front of the rooms in which they resided, and in the hearing of the plaintiff, assaulted one Jas. D. McConnell, who occupied a room near them, and then and there in a loud and boisterous
The following are the averments of the amended petition: “Amending their petition herein, the plaintiffs state that the assault on Jas. D. McConnell took place in the hall immediately in front of the room occupied by the plaintiffs at the time, and within three or four feet from the plaintiff Nettie May Reed; that the plaintiff Nettie May Reed was made violently sick by the fright which she received; that she was compelled to and did take her bed for at least ten days, as the result of said fright; and they state that her health has been greatly impaired, and they fear permanently destroyed, as the result of the fright aforesaid; and they further state she sustained physical injuries in consequence of the fright aforesaid, and has been and was damaged, as set out in the original petition herein, in the sum of $500, which injuries are and were the direct and proximate result-
A careful analysis of the language of the petition and amendment will demonstrate that the sole ground of recovery alleged is that injury and damage resulted to the appellant Nettie May Reed from fright super-induced by the conduct of appellee in committing an assault upon, and using in her hearing and within a few feet of her profane and abusive language toward, a third person, one Jas. D. McConnell; that the fright given her by the misconduct of appellee toward Mc7 Connell caused her great physical and mental suffering, made her ill for ten days, nearly produced a miscarriage, and perhaps permanently impaired her health. While it is alleged in the petition that appellee’s assault upon and abuse of McConnell occurred in her house at night, where he had gone in a drunken condition, these facts did not necessarily make him a trespasser as to the person or premises of Mrs. Reed. It is alleged that McConnell occupied a room in the same house near hers, and not alleged that appellee did not lawfully enter the house. He may have gone there upon McConnell’s invitation, or to see him on a business matter, and for some reason, whether with or without provocation, became angry with and abusive toward him after entering the house.
It will be observed that neither the original nor amended petition alleges that appellee, at the time of his assault upon or abuse of McConnell, was seen by" Mrs. Reed; that he saw her, knew she-was in hearing, or in a room near him, or that she was. then an occupant of a room in the house; nor does either aver that the door to the room she was occupying was open, thereby affording appellee an opportunity to discover her presence therein. It is also true that the petition
It is equally certain that no right of recovery can be asserted in this case upon the ground that appellee’s assault upon or abuse of McConnell, occurring at the house of the appellant Nettie M. Reed and in her hearing, constituted negligence for which he should be made to respond in damages for the alleged
Being of the opinion that the petition fails to state a cause of action, the judgment sustaining the demurrer thereto is affirmed.