Sanderson v. Hunt, 116 Ky. 435

116 Ky. 435 | Ky. Ct. App. | 1903

Opinion op the court ey

JUDGE O’REAR

Aittrming.

Appellee recovered a judgment against appellant for the-sum of $3,500 in an action for'slander. The writ of capias ad satisfaciendum was awarded appellee. Appellant, by proceedings had in bankruptcy subsequent to the judgment,, was discharged of all of his provable debts. He included in his schedule of liabilities the judgment above named. The question for decision here is, was that judgment :a liability from which the bankrupt was discharged under the act of Congress' of July 1, 1898 (30 Stat., 950, c. 541 [U. S. Comp. St., 1901, p. 3418]). Section 17 of chapter 3 of the bankrupt law of 1898 (30 Stat., 550 [U. S. Oomp_. St., 1901, p. 3428]) provides that “a discharge in bankruptcy shall release a bankrupt from all of his provable debts except such as (1) are due as a tax levied by the United States, the State, county, district or municipality in which he resides; (2) are judgments in actions for frauds, or obtaining-property by false, pretenses or false representations, or for wilful and malicious injuries to the person or property of .another. . . .” It is conceded that, unless this, claim falls within the provision of “wilful and malicious injuries to the. person or property of another,” the exception mentioned in the act would not apply, and appellant would be discharged. An essential element of every slander is . .that it shall have been maliciously uttered. Any act that is done unlawfully and maliciously is necessarily willfully done; that is, it is done of the volition of the actor. A slander is necessarily a willful and malicious act. '

It is argued for appellant that the injury done by a slander is neither to the person nor to the property of the one about whom it is spoken. At common law the right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, of his limbs, his body, his health, and his reputation. Of the “rights of persons,” referred to by Blackstone (Bl. Com., p. 134), their infringement is discussed in part in this language: “The security of his reputation or good name from the acts of detraction .and slander are rights to which every man is entitled by reason and natural justice; since without these it is impossible to have the perfect enjoyment of any other advantage or right.” In volume 2, p. 118, Bl. Com. (Cooley), under the head of “Injuries Affecting Personal Security,” he says: '“As to injuries which affect the personal security of individuals, they are either injuries against their lives, their limbs, their body, their health, or their reputation.” All these, as is each of them, are injuries to the person. The .act of Congress' must be understood as having used the words in the section quoted with reference to their common-law acceptation.- Sutherland on Statutory Construction, 289. An injury to one’s person may be done in a number ■of ways. For example, it may be done to some member of his body, it may be to his health, it may be to his sense of feeling, it may be to his state or peace of mind. Any injury done to him that wounds him in' any of these parts, is essentially a personal injury — that is, .an injury to his person; an injury to that which constitutes a part of his person. The law may not allow a recovery for all such injuries, but for such as it does allow a recovery for it may be classed generally as a recovery for a personal injury.. As was said by the Supreme Court of Rhode Island in McDonald v. Brown, 51 Atl., 213, 58 L. R. A., 768: “Wounded feelings, mental anguish, loss of social position and standing, personal mortification, and dishonor are clearly injuries that pertain to the person. In so far as we are aware, injuries to the character are always classed in the law with, injuries to the person.” In Colwell v. Tinker, 169. N. Y.,. 531, 62 N. E., 668, 58 L. R. A., 765, it was held that criminal conversation with the wife is a personal injury to the husband, without regard to the statutory declarations to that effect, in New York. This was in a proceeding for a discharge under the section of the bankruptcy act quoted. As touching the intent and spirit of the bankrupt laws, that court well said: “The policy of the bankrupt law is to discharge the honest and unfortunate debtor from his contract obligations, and.not to free him from judgments involving his fraud, which implies moral turpitude or intentional wrong, or judgments for willful and malicious injuries to the person or property of another.” In the case of Re Freche (D. C.), 109 Fed.,' 620, decided in June, 1901,. Judge Kirkpatrick, of the United States District Court, held that a judgment based upon a criminal conversation with the daughter of the judgment creditor was not one for which a bankrupt could be discharged under the section quoted. In summing up the elements constituting the rights-of tbe plaintiff, the father of the seduced girl, to recover in that case, the learned judge said: “Therefore, upon the foundation of loss of services, there has been built up a right of the parent to recover in such action' damages for ■the personal injuries upon him by the act of seduction, and to receive compensation for being thereby subjected to mental anguish, anxiety, permanent sorrow, dishonor, and disgrace. The jury is entitled to consider all these injuries in assessing the plaintiff’s damages. In this respect the injury is to the person of the plaintiff, and the damages recovered are analogous to those in an action of slander or libel.”

Appellant cites sections 88 and 74 of the Civil Code of Practice of Kentucky as indicating a legislative differentiation -existing in this State regarding those personal injuries which appertain to the members of the person and those which affect only- the character. Section 83 of the Civil Code deals with those civil actions which may be joined in one suit." It provides: “(5) For injuries to character; (6) for injuries to person and property.” Section 74 of the Civil Code of Practice, concerning the venue of actions, provides: “Every other action for an injury to the person of the plaintiff, and every action for an injury to the character of the plaintiff, against a defendant residing in this State, must be brought in the county in which the defendant resides, or in which the injury is done.” It was, '■of course, competent for the Legislature to provide what actions might be joined in one suit. All actions affecting real property may not be joined under that section; as, for example, an action upon a contract, express or implied, concerning real property, and an action for the recovery of real property. Yet this does not argue at all that both actions may not affect the rights of property. It may be, too, that the Legislature might have omitted from section 74 the words, “and every action for an injury to the character of the plaintiff,” as they were already embraced in the provision of the clause, “action for an injury to the person of the plaintiff.” However that may be, as said in Colwell v. Tinker, supra, it was the common-law definition of the term “injuries to persons” that must he looked toi in interpreting the act of Congress, rather than the local acts of the several States.

The judgment of the circuit court refusing to discharge appellant is affirmed.