Gross' Adm'r v. Ledford

• Court: Kentucky Court of Appeals
• Writing for the Court: HURT, C.J.
• Citation: Gross' Adm'r v. Ledford, 190 Ky. 526, 228 S.W. 24 (Ky. Ct. App. 1921)
• Decision Date: 18 February 1921
• Parties: GROSS' ADM'R v. LEDFORD.

228 S.W. 24

190 Ky. 526

GROSS' ADM'R v. LEDFORD.

Court of Appeals of Kentucky.

February 18, 1921

Appeal from Circuit Court, Fleming County.

Action by Charles C. Gross against James Ledford. Plaintiff dying before trial, his administrator sought to have action revived, and to prosecute the same as such representative. From a judgment dismissing the petition, he appeals. Affirmed.

C. W Fulton and John P. McCartney, both of Flemingsburg, for appellant.

B. S Grannis and C. R. Bright, both of Flemingsburg, for appellee.

HURT C.J.

This was an action by Chas. C. Gross against the appellee, James Ledford, to recover damages for the alleged alienation of the affections of the wife of Gross, and the consequent desertion of him, whereby he lost the benefits of her affections society, and assistance as a wife, or, in other words, was wrongfully deprived by the malicious acts of appellee of his conjugal rights, which are denominated in the phrase of the ancient common law as "consortium." There was no averment in the petition of any criminal conversation with the wife, and hence it was purely an action for alienating the affections, and the consequent enticement of her away from her husband. After instituting his action, and before the trial or a judgment, Gross died, and his administrator as his personal representative, sought to have the action revived and to prosecute same as such representative. This the circuit court denied, holding that the action did not survive, but abated with the death of the injured husband, and dismissed the petition, and from the judgment this appeal is prosecuted by the personal representative, and the only question for decision is whether such an action survives the death of the party, who has received the injury upon which it is based, and the answer to this question necessarily depends upon whether or not the cause of action stated in the petition survives the death of the complaining party.

At the common law, whether an action survived the death of one of the parties depended upon the nature of the action and the damages sought, and not upon the form of the remedy, and according to the principles of the same law all actions and causes of action for injuries to the person, which were founded upon torts, died with the person. Cowan v. Campbell, 17 B. Mon. 522, 66 Am. Dec. 184; Hawkins v. Glass, 1 Bibb. 246; Lynn v. Sisk, 9 B. Mon. 135. A modification of the doctrine that an action founded upon a tort did not survive was made by act of the General Assembly in 1797, but this act was held not to extend to or to embrace the right to revive actions for personal injuries. Kennedy v. McAfee's Ex'x, 1 Litt. 170. The action for damages for the alienation of the affections of the complainant's wife, whether in form of the ancient action of trespass vi et armis or in the almost as ancient form of trespass on the case, was an action for a personal injury founded upon a tort, and for damages suffered by the person, and hence according to the common law such a cause of action, as well as such an action pending and undetermined, dies with the injured party, or with the one having done the injury, unless it survives by reason of section 10, Ky. Stats., which was originally enacted in 1812. That statute provides as follows:

"No right of action for personal injury or injury to real or personal estate shall cease or die with the person injuring or injured, except actions for assault, 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."

It will be observed that the statute does not provide that any particular remedy for a personal injury shall survive, but the right or cause of action for a personal injury shall survive, except for injuries which arise from assault, slander, criminal conversation, and so much of the cause of action for malicious prosecution as entitled a recovery for injury to the person. The excepted rights of action died with the person injuring or injured, and the statute was evidently enacted in contemplation of the common-law doctrine that the survival of the cause of action depended upon the nature of the action and the damages sought, and not the form of the remedy. The question involved here does not, of course, have any reference to the various causes of action which are given by statutes to the widows, children, and personal representatives of persons who are killed by wrongful or negligent acts, for damages for the deaths of such persons, nor does it have any reference to actions for torts which are founded upon contracts and grow out of the contractual relations between the parties.

Section 10, Ky. Stats., has been construed in several decisions of this court when applied to certain states of facts, but the exact question for decision in this case has not heretofore been determined or considered by this court, and decisions in other jurisdictions, upon the subject of a survival of the cause of action here insisted upon, have been controlled by the particular statutes in force upon the subject in those jurisdictions, and hence are not authorities here, but some assistance may be had by analogy from the previous decisions of this court concerning the statute when applied to other states of fact. In the construction of this statute, the same rules should be controlling as in the construction of any other statute, the chief among which is to give to it the meaning and effect which the Legislature intended that it should have. Doubtless with this view, although the statute provides that an action or cause of action for assault only shall not survive, this court has unhesitatingly included in the exception "action for assault" any cause of action for a battery, or assault and battery, done with the intention to do violence, as well as for assault, and the latter term has been treated as if it was assault and battery. Shields v. Rowland, 151 Ky. 136, 151 S.W. 408; Anderson v. Arnold, 79 Ky. 370; Lewis v. Taylor Coal Co., 112 Ky. 845, 66 S.W. 1044, 23 Ky. Law Rep. 2218, 57 L. R. A. 447; Winnegar v. C. P. Ry. Co., 85 Ky. 547, 4 S.W. 237, 9 Ky. Law Rep. 156.

The foregoing has been done, although there could be no difficulty in drawing a distinction between an assault and a battery; but, of course, a cause of action for a battery could not exist without including the fact of an assault, and an absurd meaning would have to be given to the statute, if it should be held that under its terms a cause of action for a mere assault should die with the death of one of the parties, while the cause of action for the battery, which followed the assault, should survive. A cause of...