Perkins v. Stein

• Decision Date: 27 May 1893
• Citation: 22 S.W. 649,94 Ky. 433
• Parties: PERKINS v. STEIN et al.
• Court: Kentucky Court of Appeals

22 S.W. 649

94 Ky. 433

PERKINS v. STEIN et al.

Court of Appeals of Kentucky.

May 27, 1893

Appeal from court of common pleas, Jefferson county.

Action by one Perkins against Joseph Stein & Co. for personal injuries. Plaintiff having died, Laura Perkins, his administratrix, moved to revive the action. From an order refusing her motion, she appeals. Reversed.

F Hagan and A. H. Marret, for appellant.

Ed. M Louis, for appellees.

HAZELRIGG J.

The petition of Perkins averred that the appellees were the owners of a large brewery in Louisville, Ky. and of numerous brewery wagons, used for the purpose of delivering beer; that while so engaged the agents and drivers of the appellees carelessly, negligently, and recklessly ran into, over, and upon the plaintiff, and bruised and injured him externally and internally, the wagon running over his left ankle, and the shafts striking him in the breast; that thereby he was knocked down, and trampled upon by the horses of the defendant's wagon, and confined to his room, etc.; all to his injury in the sum of $5,000. The defendants, by answer put in issue the material allegations of the petition, and by an amended petition pleaded contributory negligence on the part of the plaintiff. While the action was pending, the plaintiff, Perkins, died, and thereupon his administratrix, the appellant here, moved to revive the action, filing the proper evidence of her qualification. The court overruled the motion. She has appealed to this court, and the sole question presented is, does the action survive to the personal representative?

Section 1, c. 10, Gen. St., provides that "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." It is contended by the appellees that the negligent act of the servant or driver in running over the plaintiff was a trespass, and therefore an assault and battery in the meaning of the statute; and that for the injury growing directly out of this act an action of trespass would lie at the common law, even against the master. Such an action, they contend, under the authority of Anderson v. Arnold's Ex'r, 79 Ky. 370, dies with the person. We do not think, however, that the action is one of trespass. While the injury was the immediate consequence of the act, and in this particular the requirements of the rule in actions of this class is met, yet it was not the act of the master. The latter may be responsible in damages-indeed, ordinarily is-for the negligence of his servant, but casse, and not trespass, is the proper remedy. It was said in Johnson v. Castleman, 2 Dana, 377, that in considering these forms of action "the distinction that exists between the defendant himself doing the act complained of and its being done by an agent" must be borne constantly in mind. But, though case be the proper form of action, yet, if the cause of action arises from or grows out of an assault and battery, it dies with the person. The vital question then is, what is an assault and battery in the meaning of the statute? "An assault is defined to be an inchoate violence to the person of another, with the present means of carrying the intent into effect." 2 Greenl. Ev. § 82. "The intention to do harm is of the essence of an assault." Id. § 83. "An assault is an attempt with violence to do a person some bodily harm, as by holding up a fist, striking at another with a stick which does not touch the latter, or throwing anything at a person which misses him, or by any similar act of inchoate violence showing an intention to do...