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to seem merchantable, and which it would be troublesome and expensive to unpack for
examination; although the seller said to the purchaser, "there it is; examine for yourself
{Singleton 1 s adnCr v. Kennedy &* Co., 9 B. M., 222) : or by representing as sound a horse
known by the seller to be unsound {Hickman's admW v. Thompson, 4 Bibb,. 361) ; unless
the horse was present and the unsoundness palpable {Hanks v. McKce, 2 Litt., 227) ; and
it has been held that, though the disease be readily discoverable, or be discovered, false
representations or concealments by the vendor which deceive the purchaser as to the cause,
nature, or recent character of the disease, constitute a fraud which entitles the purchaser
to relief {Smith v. Rowzee, 3 Mar., 527; Grant v. She/ton, 3 B. Af. t 420; Robertsons.
Clarkson, 9 Id., 506) ; and in Hughes v. Robertson, 1 Mon., 215, it was held that the plain-
tiff, who had paid for a blind horse, the blindness of which was known by the vendor and
not easily discernable, the price which the horse would have been worth, if not blind, was
entitled to sue the defendant for fraud, though no representation had been made as to
soundness.

And in Comyn's Digest, title Action upon the Case, letter A, it is laid down, upon
authorities cited, that case lies for suppressing material facts in a return to a mandamus, if
the return be false in substance, though it be true in words: so it lies against a bank for
refusing to transfer stock : so, when goods are delivered to a wharfinger or carrier, and they
are lost or stolen, case is the proper remedy, and not trover; and, in case of a simple
depositum without reward, the law raises a promise not grossly to neglect or abuse the
deposit, and if it is abused an action on the case lies.

And an action on the case lies for injury caused to the plaintiff by misrepresentations
which, though not known to be false, the law makes it the duty of the defendant to have
knowledge concerning: as, an agent's statement as to the- amount of an order which had
been drawn by his principal {Foard v. McComb, 12 Bush, 723), or a statement of bank
directors as to the condition of the bank {Graves v. The Lebanon National Bank, 10 Bush,
23) : or concerning which the law presumes the defendant to have had knowledge; as, a
vendor's statement as to the age or qualities of a slave {Thomas v. McCann, 4 B. M., 601 ;
Scott v. Perrin, 4 Bibb, 360) ; or as to cost of the goods in the vendor's retail store. More-
headv. Eades, 3 Bush, 123.

b. For consequential damages resulting from forcible torts.

Thus, though a father could maintain trespass for beating his daughter (4 Bibb, 222) ;
or for seducing her, force in the latter case being implied by law (3 J. J. M., 186) ; he
could waive the trespass and maintain case for the consequential loss of service, &c.
I Ch. PL, 139.

c. As to immediate injuries caused by forcible torts.

As has been shown, an action of trespass lies against a person for a forcible injury com-
mitted by himself, though unintentionally. The questions here are as to the liability, and
the mode of enforcing the liability, of a person for forcible injuries committed, not by
himself, but by creatures in his employment or under his control ; as, a minor-son driving
his father's carriage. I Duv., 317.

According to the common law, no action would lie for the wounding of a person by
the defendant's dog unless he had knowledge of the dog's vicious propensity or had set
him on the plaintiff (t Ch. PI., 138, 378; 12 Bush, 341) ; but article I, g 10, ch. 9, of the
General Statutes declares that *• every person owning, having, or keeping any dog shall
be liable to the party injured for all damages done by such dog : provided, no recovery
shall be had in case the person injured is, at the time, upon the premises of the owner of
the dog after night, or engaged in some unlawful act in the day-time." Under that statute,
an averment of defendant's knowledge of the dog's vicious propensity is unnecessary,
unless for the purpose of enhancing damages.



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CHAP. II.] IN ACTIONS FOR INJURY TO THE PERSON GENERALLY. IOI



Though it was said in Johnson v. Castleman, 2 Dana, 378, that " where a servant,
whilst in the actual employment of the master, commits a willful trespass, without either
the authority or implied assent of the master, the latter can not be made liable in trespass,
but only in case; " it seems clear that, as a general rule, no action lies against the master
for such willful trespass (10 B. Af., 30; 8 Bush, 151) ; though case lies against the master
"for injuries occasioned by the negligence or unskillfulness of his servant, agent, or sub-
agent, whilst in the course of his employ and in the discharge of his business " {Johnson
v. Bryan, I B. Af., 293) ; even though the negligence be gross or wantonly reckless
[Hawkins & Co. v. Riley, 17 B. Af., 101); and though the master may have disapproved
or forbidden the act. 1 1 Bush, 482.

A different rule, however, applies as between common carriers and their passengers;
for the carrier is bound by an implied contract to employ servants who will protect his
passenger against insult or outrage at the hands of strangers or fellow-passengers, if, by
the use of reasonable foresight, such injury can be anticipated and averted ; and, a fortiori,
the carrier is bound to employ servants who will not, in the course of their employment,
inflict willful injuries on a passenger (Sherley v. Billings, 8 Bush, 147 ; Winttegar's adtn'r v.
Central Passenger Railway Co., 85 Ky., 555) ; and in the case last cited, such action was
held to be "an action in the nature of an action on the case for the injuries resulting from
a breach of appellee's contract." 85 Ky., 555. And see L. C. 6r* L. R. Co. v. Sullivan,
81 Ky., 624, as to the liability of a railroad company for injury caused by culpable con-
duct of a conductor in ejecting a passenger who had refused to pay his fare.

But to incur the responsibility of master, a person must not only have the power to
select the servant, but to direct the mode of executing the work, and to so control him in
his acts in the course of the employment as to prevent injuries to others. If this relation
do not exist, no liability on the part of one for the negligence of another can arise.
Hence, the ow*er of real or personal property, who, by contract, places it in the pos-
session and under the control of another, is not liable for injuries caused by the negligence
of the contractor or his servants; but he is liable for the creation of a nuisance or for
other tort caused by executing the contract according to the agreement ; for, as to this,
the contractor is the owner's agent, with express authority to do the act {Robinson v.
IVebb, 11 Bush, 464; Matheney v. Wolf, 2 Dim., 137); and in the case last supposed,
trespass would lie against the owner according to the common law, if the injury were
immediate and forcible.

As to actions by servants against masters for torts committed by co-servants, see L. <5r*
N. R. Co. v.Robinson, 4 Bush, 508; L. &* C. R. Co. v. Covens, 9 Id., 565; L. & N. R.
Co. v. Collins, 2 Duv., 1 19; same v. Books' adtrtr, 83 Ky., 129; same v. Moore, Id., 675;
Casey's adm'r v. L. & N. R. Co., 84 Ky., 79; Fort Hill Stone Co. v. Orm"s adm'r, Id., 183.

Notwithstanding the maxim qui facit per alium facit per se, in an action against a
master for a tort committed by his servant, it is best, if not necessary, for the plaintiff to
state that the tort was committed by the servant, in order to apprise the defendant of the
facts relied on'(i Ch. PL, 382) ; and the propriety of requiring the facts to be stated truly
seems peculiarly applicable under the Code, which requires verification of the petition ;
and it is clear, at any rate, that, as a general rule, an action for a willful tort can not be
supported by proof of such tort- by the defendant's servant. 10 B. A/., 30.

d. Foregoing suggestions indicate the class of cases in which the plaintiff should allege
defendant's knowledge concerning the wrong complained of. An allegation of malice is
unnecessary, unless malice constitute the gist of the action, as in actions for slander or
malicious prosecution; and such allegation would sometimes be inappropriate, as in an
action for seducing the plaintiff's daughter. I Ch. PI., 380. And, in general, when the
act complained of is in itself unlawful, without any extrinsic circumstance, an allegation
of a wrongful intent is unnecessary (1 Ch. PI. 379) ; though it is allowable for the pur-
pose of enhancing damages (Id.', 3 Met., 319): if, however, the act be not in itself



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102 PLEADINGS — PETITIONS. [TITLE vn.

unlawful, a wrongful motive should be alleged ; as in an action for harboring the plaintiff's
wife, because it is lawful in some instances for the wife to leave her husband ; but it is, in
general, sufficient to allege that the act was done wrongfully or unlawfully; and if a wrong-
ful intent be unnecessarily stated, it need not be proved. I Ch. PI., 380, 381.

3. As to damages, see note 3, ante, page 85.

V. Petitions in actions for injury to property.

The common law remedy for such injury is an action of trespass or trespass on the case;
the latter being, in general, a remedy for an injury for which the former will not lie ; and
the question as to which action lies depending, 1, on the nature of the property; 2, on
the nature of the plaintiff's right or interest in it ; and, 3, on the nature of the injury.

1. As to the nature of the property.

♦'Trespass is, in its essence, an injury to the possession." 4 Bibb, 218. Consequently,
the action of trespass only lies for injury to property in possession of the plaintiff at the
time of the injury: such as "all inanimate personal property, and all domiciled and
tame animals, as dogs (see 84 Ay., 681) and cats; and all animals usually marketable, as
parrots, monkeys, &c, and in which case it is not necessary to state in the pleadings that
they were reclaimed ; but in the case of a hawk, pheasant, hare, rabbit, fish, or other
animals fera natura, and not generally merchandizable, it should be shown in the plead-
ings that the same were reclaimed or dead, or at least that the plaintiff was possessed of
them" (I Ch. PI., 166) ; and " with respect to the nature of real property affected, it must
be something tangible and fixed, as a house, a room, out-house, or other buildings, or
land; " or a right, however temporary, to dig coal or harvest grass or corn on land belong-
ing to another \Id., 175-76); and the owner of land, in possession of it, can maintain
trespass for injury to it, though it be a street or other highway {Id., 175; West Covington
v. Freking, 8 Bush, 121) ; for fencing in of land is not necessary to give possession of it to
the owner (1 Ch. Pi., 175), it being a settled rule that actual occupancy of part of a tract
of land by a person having, or even claiming, title to the whole, gives him actual posses-
sion of the whole, except against persons having adverse possession (4 Bibb, 426, 563; 1
Mar., 5, 452; 2 Dana, 29; 9 B. M., 83, 312; 11 Id., 98; 1 Duv., 384) ; but, though the
trustees or pastor of a church, having possession of it, can maintain trespass for a wrongful
entry into it, case and not trespass is the remedy of a pew-owner for an entry into his pew
without permission, "because the plaintiff hath not the exclusive positession" (1 Ch. Pt 9 ,
176) ; and case is the remedy for interference with incorporeal property, such as a right of
common or a right of way or a ferry. 1 Ch. PI., 176; Lilt. S. C, 184.

As to possession, there is a distinction between real and personal property ; for owner-
ship of title to the former does not give possession, though no one be in possession (4
BiM, 218; 5 J. J. M., 336); but such ownership does give possession of the latter, unless
some one else be in possession, claiming adversely to the owner, or having a right to
hold possession under contract with the owner, such as a hirer (1 Ch. PL, 151 ; 4 Bibb,
218; 4 J.J. M., 19; 7 Dana, 247-48); and possession of a servant or carrier or other
bailee, who has no right to withhold possession from the owner, is the owner's possession.
I Ch. PI., 152.

As it is sufficient, in any case, for the plaintiff to state a prima facie cause of action;
and as the action of trespass lies only for an injury to the possession ; it follows, from the
cases above cited; 1, that in such action, as to either land or chattels, it is sufficient for
the plaintiff to allege that he had possession at the time of the injury ; 2, that, in such
action as to land it is insufficient (as it is unnecesary) to allege title, as title does not give pos-
session; 3, that, in such action as to chattels, it is sufficient for the plaintiff to allege
either that he had possession or that he had title, as title to chattels gives possession ;
though it is sufficient to say that they " were his," without showing how he became
entitled (I Bibb, 399); and, 4, that it is sufficient for the plaintiff to prove such possession
of chattels, except against a defendant who was entitled thereto (1 Ch. PL, 170) ; or to prove



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CHAP. II.] IN ACTIONS FOR INJURY TO PROPERTY. IO3

such possession of land (though not mere intrusion thereon, $/•/• M. 9 337-38), except
against a defendant who intruded thereon under a right of entry. 2 Afar., 448; 1 J. J- M. f
599; 1 Dana, 8; 2 Id., 134; 2 Met., 418. But a bond for title to land does not give a
right of entry (2 Litt., 60; 7 Busk, 3); though one in possession under a title-bond, or
even under a parol-purchase, can not fie lawfully ousted by the legal owner without
notice to quit. 3 B. M., 544. Against an intruder on land, having a right of entry, the
person in possession was without remedy by the common taw, even though the entry were
made with actual force; for, "according to the common law, a person holding the title
to land and having the right of entry, might use actual force, if necessary, for overcoming
any forcible resistance; because, his right of entry being perfect, no other person could
lawfully resist him in the exercise of his perfect right" (7 J. J. M., 601) ; but the Code
gives the person in possession the writ of forcible entry as a remedy, though the entry may
have been made without actual force. $ 452, 454, and notes.

As to the owner of land not in his possession, it seems clear that, though he can not
maintain trespass for an injury, as by felling trees ; yet that he can maintain either trespass
or trover against the wrong-doer if he remove the trees ($/•/- M., 337), just as may be
done by a lessor or other person having a reversionary interest in land not in his possession
(1 Ch. PI., 150; $/./. M., 337; 7 Dana, 250; 17 B. M., 498); because severance of the
trees from the soil converts them into personal property to which the land-owner becomes
immediately entitled : and in McClain v. Todd's heirs, $/. J. M., 337, it was held that such
owner can maintain case for an injury to the land; but in Robertson v. Rodes, 13 B. M.,
325, the court, without noticing McClain v. Todays heirs, and saying that it is not advised that
any authority can be found for holding that such action will lie ; and making a distinction,
without giving a reason for it, between the right of a reversioner and that of an absolute
owner of land not in his possession, to sue for injury to it, held that such owner can not
maintain case for such injury. That decision, which was rendered in December, 1852,
had it been and continued to be law, would have left such land-owner without any remedy
for the wrongful cutting of trees, &c, not followed by removal of them ; but an act of March
10, 1854, declared " that the owner of any land in this State may maintain the appropriate
action to recover damages for any trespass or injury committed thereon, notwithstanding
such owner may not have the actual possession of the land at the time of the trespass;' 1
which act, though omitted from the General Statutes, was re-enacted by an act of March
13, 1888. For decisions as to said act see Bebee v. Hutchinson, 17 B. Af., 496, and Haider-
man v. Middleton, 6 Bush, 44: concerning which my only comments are the suggestions,.

1, that I do not understand the meaning of the opinion in Halderman v. Middleton; and,

2, that the only object of the act of 1854 was, probably, restoration of the common law as
it was understood to exist before the decision in Robertson v. Rodes,

But, as the right to maintain an action on the case depends, not on possession, but on
title, the plaintiff in such action must set forth his right to the property, &c. ; but, though
it is necessary, of course, for the plaintiff to prove how he acquired the right, if it be dis-
puted, he need not, in general, state in his petition how he acquired it: thus, "if the
declaration be for diverting a water-course from the plaintiff's mill, his possession of the
mill should be concisely stated, and that by reason thereof he ought have had the use and
benefit of the water-course ; without stating that it was an ancient mill, or describing the
grounds upon which the right to the water is claimed" (I Ch. PI., 369) ; and in an action
for disturbance of a right of common or a right of way which is appurtenant to land, it
is sufficient to allege possession of the land, and thai by reason thereof Wit plaintiff was
entitled to the right of way or common (Id.) ;* and "in an action on the case for obstruct-

♦In 1 Chitt?* Pleadings, 369, it is said that "when a reversioner sues for an injury to houses, lands,
Ac, in poss ess ion of his tenant, his interest must be described accordingly, though it is sufficient to allege
g onerm lfy that the lands were in possession of the third person as tenant to the plaintiff'* The rule
indicat ed by the words 1 have italicised may be correct where disputed titles under conflicting grants



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104 PLEADINGS — PETITIONS. [TITLE vn.

ing ancient rights,, the declaration usually states that the plaintiff, at the time of commit-
ting the grievances complained of, was lawfully possessed of a messuage, situate, &c,
wherein there of right were and ought to be certain windows, through which the light
and air ought to have entered the messuage, and then states the injury ; and this is suf-
ficient without alleging that the windows were ancient." Id. But, if the plaintiff's right
is founded on a contract, or on a duty imposed by law on the defendant, the petition must
set forth the contract, or must state facts from which a contract may be implied, or facts from
which the legal duty arises. Id., 370 Where, however, " the law gives a general right,
as for all persons to fish in a public navigable river, it is improper to state such public
right, or to prescribe, and it will suffice to show that the defendant prevented the plaintiff
from fishing, &c." Id., 366.

2. As to the plaintiff's right or interest in the property.

Though property be corporeal and therefore susceptible of actual possession, such as
land or a chattel ; yet, if the plaintiff's right or interest in it be incorporeal and therefore
not susceptible of actual possession, such as a reversionary right, his common law remedy
for injury to it is a* action on the case and not an action of trespass.

Thus, though the possession of a tenant is, in some respects, the possession of his land-
lord, yet, for tortiously felling trees on land in possession of a tenant, whether for life or
for years, he, only, can maintain trespass for the intrusion on the possession; case being
the remedy of the lessor, reversioner, or remainder-man (I Ch. PI., 143; 4 J. J. M., 19;
5 Id., 337; 84 Ky., 312) ; and the same rule applies as to hired chattels. Lexington and
Ohio P. Co. v. Kidd, 7 Dana, 245.

3. As to describing the property, see note 2, page 84.

4. As to the injury.

Most of the remarks, &c, in note 2, ante, page 98, as to injuries to the person, apply
as to injuries to property; and it seems sufficient to add thereto—

(1) As to forcible injuries, for which trespass lies, that the shooting or beating of the
plaintiff's dog or other live animal, or hunting or chasing sheep, &c, or mixing water with
the plaintiff's wine, is such an injury (I Ch. PI., 173) ; so is the shooting at and killing game
on the plaintiff's premises, without entering thereon (Id., 180) ; or fastening a raft to that
of another w"hich is moored to the shore, by means whereof its moorings are broken and
it is swept away by the current (Justice v. Mendell, &Y., 14 B. A£. 9 12) ; and force implied
from an unlawful entry on land. I Ch. PI., 126.*

(2) As to injuries without force, for which case lies, that " in general, a mere non-feasance
can not be considered as forcible ; for where there has been no act there can not be force,
as in the case of a neglect to take away tithes, or a mere detention of goods without an
unlawful taking ; or the neglect to repair the banks of a river, whereby the plaintiff's land
was overflowed;" or neglect to re-deliver a beast distrained damage feasant when suf-
ficient amends were tendered before the beast was impounded. 1 Ch. PL, 127.

(3) As to consequential damages resulting from forcible injuries, for which case lies, that,
if a person stop a water-course on his own land ; or if he place a spout on his own building,
in consequence of which water afterwards runs into the plaintiff's land, the injury is con-
sequential; because the flowing of the water, which was the immediate injury, was not the
wrong-doer's immediate act, but only the consequence thereof. I Ch. PI., 129.

from the sovereign of the soil have been settled by centuries of controversy or of lack of controversy,
but it does not seem to be applicable here ; for, though a lessee is estopped from denying the lessor's
title, no one else is; and the history of our land-litigation proves, perhaps, that the placing of a tenant on
land does not raise even * prima Jacie presumption that the lessor is entitled to it; multitudinous leases
having been made, and many being yet made, for the purpose of acquiring title against the owner by
lapse of time and statutes of limitation.

* In England, it is the duty of the owner of cattle to keep them enclosed, and trespass lies against him
if they escape and enter on the land of another. Comjm's Digest, title Trespass (C). For the law of
Kentucky on this subject, see General Statutes, chapter 55.



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CHAP. II ] IN ACTIONS FOR CONVERTING PROPERTY TO ONE*S USE. IO5



(4) That case is "a concurrent remedy with assumpsit [or covenant] for many breaches
of contract, not merely for the payment of money, whether the breach were non-feasance,
misfeasance or malfeasance" (1 Ch. Pi., 136) ; as, for obstructing the plaintiff in the enjoy-
ment of an easement, of which the defendant had agreed to give him the benefit ; for not
accounting for the produce of bills delivered the defendant to get discounted (Id., 136) ;
for waste by a tenant who had covenanted not to commit waste (Id., 144) ; for neglect in
the care of goods by carriers or other bailees {Id., 136; 1 Dana, 147); or for removing
from the State a slave which the defendant had agreed not to remove (6 B. M., 428) ; and
see fVeimtegar's adm'r v. Central Passenger R. Co., 85 Ky., 555, and AfcAfurtry v. Ky. Cen-
tral R. Co., 84 Ky., 462.

By suing in case instead of on the contract, I, the plaintiff may prevent the defendant
from pleading a set-off (see Code, \ 96) ; and 2, if the injury were prompted by a bad
motive or resulted from gross negligence on the part of the defendant, the plaintiff may
recover exemplary damages, which he could not do in an action on the contract. 84
Ky., 467.

As to damages, see note 3, page 85.

VI. Petitions in actions for converting specific personal property to the
defendant's use.

The common law remedies for this injury are, I, an action on the case, commonly called
an action of trover and conversion ; and, 2, an action on an implied contract for the value of
the property.

I. As to actions on the case.

(1) As to describing the property, sec note 2, page 84.

(2) As to the plaintiff * s right or interest.

a. As has been shown (page 103), though the lessor of land, or other reversionary owner
of it, can not maintain trespass for an injury to it, as by felling trees, he can maintain trover
against the trespasser if he remove the trees ; but his petition must set forth his reversion-
ary right. I Ch. PL, 369.

b. But the owner of a chattel, who hires it to another, can not maintain trover against



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 17 of 142)