Anderson v. Arnold's Ex'r
| Decision Date | 12 April 1881 |
| Parties | Anderson v. Arnold's ex'r. |
| Court | Kentucky Court of Appeals |
1. Shooting and wounding another is an assault and battery although unintentional, and the action therefore dies with the person injuring or the person injured.
2. When the act complained of, and not the consequences of the act causes the injury, the remedy is trespass and not case.
APPEAL FROM HARDIN CIRCUIT COURT.
WILSON & HOBSON FOR APPELLANT.
1. An " assault and battery," within the meaning of chapter 10, section 1, General Statutes, is an intentional injury.
2. Under this statute, actions seeking compensation for actual injury done the person or the estate of the plaintiff, do not die with the person.
W. H CHELF FOR APPELLEE.
1. This is an action for assault and battery, although the shooting is charged to have been unintentional, and the action died with the person who did the injury. (Gen. Stat., chap. 10 sec. 1.)
2. For an injury which is immediate and not consequential, trespass is the proper remedy and not case, without regard to the motive of the wrong-doer. (1 Chitty on Pleadings, pp. 77, 101, 102, 151, 190, 191, 193; 2 Addison on Torts, sec. 788.)
HAYS & BUSH FOR APPELLEE.
The petition sets up no other cause of action than an assault and battery, which dies with the person. (Gen. Stat., p. 179; 3 Blackstone, 121; Bouvier's Law Dictionary, " Assault." )
Section 1 of chapter 10, General Statutes, provides: " no right of action for personal injury, or injury to real or personal estate, shall cease or die with the person injuring or the person injured, except actions for assault and battery, 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 other 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 on contract."
The appellant, James Anderson, instituted his action in the Hardin circuit court, in which he alleges that on the ____ day of _______, in the year 1878, the appellee's testator negligently and recklessly, but not intentionally, inflicted a wound upon the body of the plaintiff (appellant) with a pistol; in other words, that the appellee's testator shot the plaintiff with a pistol, causing him great pain and bodily suffering, and for which he asks a judgment, & c.
On the hearing of the cause, a demurrer was filed and sustained to the petition on the ground that the cause of action died with the person, and no action could be maintained against Arnold's personal representative.
Counsel for the plaintiff proceeded upon the idea that the injury must be intentional in order to constitute it an assault and battery, and if involuntary, the remedy was by an action on the case: as if A shoot at B and wounds C, the shooting of C being unintentional, is not an...
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