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or, if over twenty-one years of age, by averring and proving even slight service, though
there was no contract therefor. See authorities last cited and Bennett v. Alcott, 2 Dumford&
East, 166. But a father could not maintain either trespass or case for the seduction of his
daughter when in the service of another, whether she were over or under twenty-one.
Contyn's Digest, title Action upon the Case, letter B, I ; and title Trespass^ letter D.

In trespass, the plaintiff was entitled to recover at least nominal damages, and the jary
could give exemplary damages for the implied force (see note 3, page 85) ; and he could,
too, recover consequential damages for loss of service or money expended in case of sick*
mess ; whilst in case, waiving the implied force, he could recover, not only those special
•damages, but also exemplary damages for the consequential injury to his reputation and
feelings resulting from the seduction. Applegate v. Rubel, 2 Mar., 128; 9 Bush, 458-59.

And it seems clear that the plaintiff's right to recover such exemplary damages, whether
in trespass or in case,w2M distinct from his right to recover special damages for loss of
•service or money expended ; and that, after recovering exemplary damages, whether in
trespass or case, the right to sue for which accrued immediately upon- the seduction, he
could maintain case for special damages accruing subsequently.

In an action for seduction it was not necessary for the plaintiff to allege or prove
•defendant's knowledge of the relationship between the plaintiff and the seduced female ;
though, in an action for seducing the plaintiff's wife, proof of marriage was necessary,
proof of reputation of marriage being insufficient. 2 Ch. PL, 307, notes g and h.

And it was held that, though, in an action by a woman for breach of a marriage-
promise, proof of her seduction by the defendant was inadmissible; in an action by a
father for the reduction of his daughter, such proof was admissible in aggravation of dam-
ages. Burks v. Sham, 2 Bibb, 341.

In what respects, if any, was the common law changed by the statute?

1. The statute has not changed the common law rule, that a right to sue for seduction
accrues upon - the act of seduction. I Duv., 314.

2. The statute has not deprived a father of his common law right to recover special
•damages resulting from the seduction of his daughter. I Duv., 313.

3. The statute has not deprived a father of his common law right to recover exemplary
•damages for the seduction of his daughter. Wilhoyte v. Hancock, 5 Bush, 567; Pence*.
Dozier, 7 Id., 133.

4. The statute has not deprived a father, who sues for seduction of his daughter, of
"his common law right to prove, in aggravation of damages, that she was seduced under a
promise to marry her. 7 Bush, 134.

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5. In Woodward v. Anderson, 9 Bush, 624, it was contended that, as the statute dis-
penses with the necessity of alleging or proving service, a woman can maintain an action
for seduction of herself; but the court, notwithstanding dicta in 5 Bush, 570, and 7 Id,,
134, held correctly, I believe, that, in this respect, the statute did not change the common
law ; which, though it implies force in favor of a person whose wife or daughter has been
seduced, does not so imply in favor of the guilty wife or the not guiltless daughter; and,
consequently, does not tolerate an action by a female for her debauchment. 2 Bibb, 343.

6. In Woodward y. Anderson, 9 Busk, 627, the court said: "This statute does not give
the right of action to any other persons than those who could maintain it at common law,
and the only object the legislature had in view was to dispense with the allegation and
proof of the loss of service." If this statement means that no action can be maintained
under the statute which could not have been maintained before, and if the statement,
thus understood, is correct ; then the statute is nugatory, being merely declaratory of the
common law rule as to actions of trespass. Some effect can be given to the statute by
holding, as its language seems clearly to authorize, that it gives to a father the right to
sue for the seduction of his daughter, though not residing with him, and though in the
service of another, when seduced ; and it seems probable that this was the only object of
the statute.

7. As to limitation.

Under the act of 1796 (Af. cV B. t 1132), three years barred an action of trespass, and
five years barred an action on the case for seduction.

Chapter 63, art. 3, }2, of the Revised Statutes, declares that "an action for the injury
to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated

. . shall be commenced within five years after the cause of action accrued ; " and § 3
of said article declares that "an action for an injury to the person of the plaintiff, or of
his wife, child, ward, apprentice, or servant, an action for a malicious prosecution, con-
spiracy, arrest, seduction, criminal conversation, or breach of promise of marriage, shall
be commenced within one year next after the cause of action accrued;" and those pro-
visions are contained in chapter 71, art. 3, of the General Statutes.

An action for seduction, in which the plaintiff makes no claim for loss of services, is
barred by the lapse of one year from the act of seduction {Hancock v. Wilkoyte, I Duv.,
313; WUhcyie t. Hancock, 5 Bush, 567 ); and, according to those cases, an action for loss
of service of a daughter, and money expended, is barred by the lapse of one year from
the time when the loss accrues — viz., the time of her accouchment (Hancock v. Wilkoyte),
or, rather, the time of her recovery from confinement { Wilhoyte v. Hancock) ; but, in the
latter case, it was held that, in an action for loss of service, a father can recover exem-
plary damages for the injury to his feelings, and his and his family's dishonor, resulting
from the seduction, though it was effected more than a year before the commencement of
the action.

Concerning those cases I suggest —

(1) That there is strong ground for contending that the limitation of an action for
special damages (viz., loss of service and money expended) is governed by the words above
quoted from § 2 ; and is, therefore, five years instead of one year. This is certainly true,
unless the words, "action for seduction," were used in different senses in ch. 63, art. 3,
1 3, and in ch. 1, J 2, of the Revised Statutes. As used in the last named section, they
clearly mean an action for exemplary damages ; and, according to a settled rule of con-
struction, they must be held to have been so used in the above-named \ 3, unless it clearly
appear that they were used in a different sense ; and I perceive no reason for holding that
they were used in a different sense.

(2) That the Court of Appeals concedes, in both the Wilhoyte cases, that under the
statute, as before, a father has distinct causes of action for exemplary damages for the
seduction of his daughter, and for special damages for loss of service; and that I am

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unable to perceive any reason for holding that, because he has sustained loss of service for
which he sues, he can, therefore, recover exemplary damages for a seduction effected
more than a year before the commencement of his action.

IV. Petitions in actions for injuries to the person generally.

I. As to the plaintiffs right or interest.

Wherever the right of the plaintiff is implied by law, as the absolute rights of persons,
it is unnecessary to state same; as, in actions for assault and battery of the plaintiff, in
which it is sufficient to allege the injury, without any inducement of the right of personal
security ; but as the law neither gives nor implies the right of any person to the services of
another, in an action for an injury to the relative rights of the plaintiff — as, of husband or
master — the relation must be stated. 1 Ch. PL, 366, 367. And in an action for enticing
away or harboring the plaintiff's wife or servant, the plaintiff must allege and prove that
the defendant had knowledge of the relationship ; aUter, in an action for debauching the
plaintiff's wife or servant. 2 Ch. PL, 307, note g.

As to actions by and against personal representatives, &c.

According to the common law, "in the case of injuries to the person, whether by
. assault, battery, false imprisonment, slander, or otherwise, if either the party who received
or committed the injury die, no action can be supported either by or against the personal
representatives." 1 Ch. PL, 59.

But in Winnegar's admW v. Central Passenger Railway Co., 85 Ky., 547, it was held
that, at common law, actions for injuries to the person survive "when the action can be
framed in form ex contractu-," and, consequently, that the defendant's agent, the driver
of a street car, having wrongfully ejected a passenger, thereby causing his death twelve
days afterward, his administrator had a right to maintain an action, in the nature of an
action on the case, for the injuries resulting from a breach of the defendant's contract to
carry him safely, and to "recover damages for the physical and mental agony of the intes-
tate from the time of the commission of the wrong up to his death."

And, if the death of a wife or of a child (though the child be of age, if in service of
the plaintiff at the time of the injury. Applegate v. Ruble, 2 Mar., 128; IVilhoyte v. Hath
cock, 5 Bush, 567) be caused by a wrongful act, the husband or parent can maintain an
action against the wrong-doer for the loss of the society of the wife, or of the servicer of
the child, from the time of the injury to the time of death {Eden v. L. & F. R. Co., 14
B. M., 206) ; and may also recover expenses incurred for medical services, care in nursing,
&c. ; but not for the plaintiff's mental suffering caused by the injury to, or death of, the
wife or child. Covington Street R. Co. v. Parker, 9 Bush, 455.

But the law as to causes of action which die with the person has been changed in
several respects, by statutes, viz. —

(1) Anactof\%\z {M. 6* B., 88), re-enacttd by chapter 10 of the Revised Statutes and
of the General Statutes, which declared "that hereafter, no species of actions for personal
injuries shall cease or die with the person except actions for assaults and batteries, slander,
criminal conversation, and so much of the action for malicious prosecution as is intended
to recover for the personal injury."

Under that statute it has been held—

a. That the intentional shooting or wounding of a person is an " assault and battery,"
within the meaning of the act, a cause of action for which dies with the person. 79
A>., 370.

b. That the act gives to a personal representative no right of action when the decedent
had none (9 Bush, 534) ; and, as no right of action accrues to one whose death instanta-
neously follows the injury, this statute gives no such right to his personal representative
(II Bush, 384-85), but that, if there be an appreciable interval between the injury and the
death, for his physical and mental agony a right of action accrues to the sufferer, and,
under the statute, survives to his personal representative. Hansford's adm'r v. Payne, II

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Bush, 380: and see Winnegar's adm*r v. Central Passenger R. Co., 85 Ky., 547, above
cited, page 96.

c. In Huggins v. Toler, 1 Bush, 192, the court, without adverting to any distinction
between an unlawful arrest under color of legal process and an unlawful arrest without
such color, held that a cause of action for falsely and maliciously procuring the unlawful
arrest and imprisonment of the plaintiff by soldiers of the United States, survived to his
administrator : and Chilly maintains that a person can maintain either trespass or trespass
on the case against one who maliciously procures his arrest under an irregular warrant.
See ante, note (1), page 89.

(2) Chapter 1, J 6, of the General Statutes, which gives to the widow, &c, of any person
killed by the careless, wanton, or malicious use of fire-arms, &c, not in self-defence, a
right of action against the person who commits the killing, &c.

Under that statute—

a. It was held that the petition must allege that the killing was "not in self-defence."
Becker v. Crow, 7 Bush, 198.

b. The court expressed the opinion that the statute does not authorize an action against
the owners of a steamboat for a killing by its mate, or against any other person than the
one committing the deed. 82 Ky., 384.

(3) Chapter 32 of the General Statutes, giving to the widow, &c, of a person killed in a
duel a right of action against his slayer, &c.

(4) Chapter 57, \ 1, of the General Statutes, which declares that "if the life of any
person not in the employment of a railroad company shall be lost in this Commonwealth
by reason of the negligence or carelessness of the proprietor or proprietors of any railroad,
or by the unfitness or negligence or carelessness of their servants or agents, the personal
representative of the person whose life is so lost may institute suit and recover damages in
the same manner that the person himself might have done for any injury where death did
not ensue."

a. The only difference between this section and J 1 of the act of March 10, 1854 (2
Stanton's R. S., 510), is, that, in the former, the words "in this Commonwealth" follow
the word "lost" in the second line, whilst in the latter, the words "in this State" follow
the word "agents" in the fourth line.

b. This statute applies to "any railroad, whether impelled by horse or steam power, or
constructed as a narrow or broad gauge, with iron or other railing." 10 Bush, 232.

c. This statute does not affect the common law right of a husband or parent to recover
damages for the loss of society of his wife, or loss of service of his child, and expenses
for medical attendance, &c. 9 Bush, 455.

(5) Chapter 57, \ 3, of the General Statutes, which declares that " if the life of any person
or persons is lost or destroyed by the willful neglect of another person or persons, com-
pany or companies, corporation or corporations, their agents or servants, then the widow,
heir, or personal representative of the deceased, shall have the right to sue such person or
persons, company or companies, corporation or corporations, and receive punitive damages
for the loss or destruction of the life aforesaid."

a. The only difference between this section and \ 3 of the act of March 10, 1854, is,
that the latter gives the right of action to the "personal representative" of the deceased,
whilst the former gives it to the "widow, heir, or personal representative "

b. The word "heir" in the statute means "child." 86 Ky., 395.

c. The statute gives only one cause of action, with a preference to the widow and
children, if there be any, over the personal representative ; a judgment in an action by
one bars an action by either of the others ; limitation against one runs against all ; and if
there be no children, the pendency of an action by the widow can be pleaded in bar of
the further prosecution of an action previously brought by the administrator. L. <5r* N,
R. Co. v. Sanders, 86 Ky., 259; Henderson's adm'r v. Ky. Central R. Co., Id., 389.


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d. This statute gives no right of action for the intentional killing of a person. Springs
admW v. Glenn, 12 Bush, 172; Morgan v. Thompson, 82 Ky., 383.

2. As to the injury.*

The common law remedy for an injury to the person, generally, is an action of trespass
or of trespass on the case. And, though the Code has abolished those forms, it has not
abolished the distinctions on which they were founded. Ante, page 84. And those dis-
tinctions may yet be frequently material ; because, if for no other reason, it seems proba-
ble that if the plaintiff, instead of bringing trespass for an «« assault and battery," should
(having the right to do so), waive the trespass and bring an action on the case for the injury,
the right of action would survive under chapter 10 of the General Statutes. See Win-
negar v. Central Passenger R. Co., 85 Ky., 547, and comments on Huggins v. Toler, ante,
note (1), page 89.

( I ) Actions of trespass for personal injuries.

In trespass it is necessary, in general, for the plaintiff to show that the injury was the
immediate, not the consequential, result of an actually or impliedly forcible act of the defendant;
as, beating the plaintiff's servant (4 Bibb, 222), or his wife (Comyn's Dig., title Trespass,
B. 5) ; or enticing away or debauching the plaintiff's wife, daughter, or servant, force in
such cases being implied (3 J. J. M., 186) ; or an assault by another person at the request
of the defendant (1 Ch. PI., 182) ; or an assault by a dog which the defendant set on the
plaintiff {Id., 138), or which, being notoriously ferocious, was not properly con6ned by
the defendant {Id., 184) ; or throwing into a highway a log which, in falling, hits the
plaintiff {Id., 128) ; or accidentally pushing the plaintiff from a boat (6 Afon., 337) ; or
unintentionally shooting him (79 Ay., 370) ; or arresting the plaintiff, or causing him to
be arrested, under color of legal process, if the court has no jurisdiction, or if the process
is void for irregularity, or is misapplied gx abused (as to which see note (I), ante, page 98);
and " where a lighted squib was thrown in a market-place, and afterward thrown about
by others in self-defence, and ultimately hurt the plaintiff, the injury was considered as
the immediate act of the first thrower, and a trespass; the new direction and the new
force given to it by the other persons not being a new trespass, but merely a continuation
of the original force" (I Ch. Pi., 128); but, if A strike a horse on which B is riding,
whereby C is thrown down, trespass does not lie against B. Comyn's Di&., title Tres-
pass, (C) (c 1).

The statement of the defendant's motive, though allowable to enhance damages, is not
necessary in order to maintain the action. 1 Ch. PI., 378; 3 Met., 319.
- And it is not necessary to state the circumstances under which the act was committed,
but is sufficient and proper to state the injury directly and positively, according to the facts.
I Ch. PL, 375-76; 2 Met., 149.

And it is improper to state the injury by way of recital, as by saying •« for that whereas "
or "wherefore" the defendant did the act complained of. 1 Ch. PL, 375-76.

At common law, the fact that the act complained of constituted a misdemeanor neither
defeated nor suspended a right of action for the private injury {Blassingame v. Gloves, 6
B. M., 38) ; but, according to the opinion in Eden v. L. 6° F. R. Co., 14 B. M. % 204,
with the exception of homicidal felonies, under the common law, as established in England,
" a party injured by an act which is felonious can not seek ci\il redress for it until the
matter has been investigated and disposed of before the appropriate tribunal. . . .
The existence of this rule has not been recognized in this State. . . . But, according
to the principles of the common law, injuries affecting life can not, in general, be the sub-
ject of a civil action. In other inferior felonies, the civil remedy is merely suspended
until after the conviction or acquittal of the supposed felon ; but for injuries to lift, the

♦As to averments, &c, under chapter 57 of the General Statutes, for causing death of a person by
negligence, see note (a), poet, page 113.

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civil remedy is considered as being entirely merged in the public offense." See General
Statutes, ch., 21, \ 24, declaring that "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 may be thereby imposed ;" chapter 29,
{4, declaring that "the commission of a felony shall not stay or merge any civil remedy
of the party aggrieved against the felon ; " and chapter 29, article 14, $ 1 to 5 of which
declare that certain acts therein mentioned shall be penitentiary offenses ; J 6 of which
declares that any person who, by committing either of the offenses named in the preceding
five sections, shall cause the death of any person, "shall be deemed guilty of murder ;"
and J 7 of which declares that "nothing in the three preceding sections shall be so con-
strued as to prevent such railroad company, or any person injured, from sustaining a civil
action for damages against any person or persons committing the offenses aforesaid " — thus
seemingly authorizing the inference that, in legislative contemplation, the offenses mentioned
in $ 1, 2 and 3, not causing death, would prevent an action for damages.

Under the old practice, the plaintiff, besides stating the facts constituting the injury,
usually alleged that it was done "with force and arms," and "against the peace, &c. ;"
but the omission of these averments was ground for special demurrer only (1 Ch. PL,
376-77), and is not ground for either general or special demurrer under the Code. J§ 92, 93.
It was also the practice for the plaintiff to allege the commission of "other wrongs ;"
under which allegation, according to Chilly, some matters may be given in evidence in
aggravation of damages, though not specified in any other part of the declaration ; but
the plaintiff can not prove, under such allegation, any matter which constitutes, of itself,
a cause of action. 1 Ch. PL, 389-90. But J 116 of the Code, by requiring verification of
the plaintiff's allegations, excludes the averment of "other wrongs" unless other wrongs
have been committed. And, as the plaintiff in an action for slander can prove non-action-
able words, in aggravation of damages, though not stated in the declaration (1 Ch. PL, 384) ;
and as a father, in an action for seducing his daughter, can prove a contract to marry her,
in aggravation of damages (2 Bibb, 343) ; it seems clear that, according to the common law,
the plaintiff in an action for trespass can prove any non-actionable matter which is properly
admissible to aggravate damages, without alleging "other wrongs;" and that J 119 of the
Code, which forbids the statement in a pleading of the evidence relied on by a party,
should be regarded* a fortiori, as forbidding the averment of "other wrongs" for the pur-
pose of introducing evidence in aggravation of damages.
(2) Actions on the case for personal injuries.
This species of action is the common law remedy —

a. For torts committed without force, actual or implied (\ Ch. PL, 135); as, against sur-
geons and physicians, for negligent or unskillful treatment d Ch. PI., 139) ; against grocers
for furnishing the plaintiff unwholesome provisions for family consumption, or against a
druggist for furnishing poison instead of medicine (Fleet, <5rV., v. Hollenkamp, 13 B. M.,
219 ; Hansford's adm'x v. Payne & Co., 11 Bush, 380) ; and against attorneys or other agents
for neglecting- the plaintiff's business, or failing to account for money, &c, (i.Ch. PI.,
140) ; or for slandering the plaintiff (1 Ch. PI., 138), or injuring his credit by a malicious
prosecution (8 B. M., 54) ; or creating a private nuisance in the plaintiff's neighborhood,
or continuing it, if created by another, after a request to abate it (Ray v. Sellers, I Duv.,
256) —knowledge of its existence by such continuer not being sufficient to make him liable
without such request ( West v. L. C. & L. R. Co., 8 Bush, 404) : or for creating a public
nuisance which causes special injury to the plaintiff; as, by his falling over a log placed by
the defendant on a highway (1 Bibb, 293), or by his suffering, in health or comfort, from
noxious vapors, &c, produced by the defendant's distillery or slaughter-house (Corley v.
Lancaster, 81 Ky., 171 ; Seifried v. Hays, &c, Id., 377) ; or for committing a fraud on the
plaintiff; as, by shunning -a toll-gate (Blakey v. Dinsdale, Cowper, 661) ; or by representing
a person as being worthy of credit, knowing him to be unworthy (I Ch. PI., 378) ; or by

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knowingly misrepresenting a person as being the indorser of a bill of exchange (2 Duv. y
156) : or by knowingly selling, as merchantable, an inferior article which is so packed as

Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 16 of 142)