Smith v. Gowdy

• Decision Date: 31 October 1922
• Citation: 196 Ky. 281,244 S.W. 678
• Parties: SMITH v. GOWDY.
• Court: Kentucky Court of Appeals

244 S.W. 678

196 Ky. 281

SMITH v. GOWDY.

Court of Appeals of Kentucky.

October 31, 1922

Appeal from Circuit Court, Taylor County.

Action by Sallie Smith against V. M. Gowdy. From a judgment of dismissal, plaintiff appeals. Affirmed.

Dorsey & Dorsey, of Springfield, for appellant.

W. M Jackson, of Campbellsville, for appellee.

SETTLE J.

This action was brought by the appellant, Sallie Smith, against the appellee, V. M. Gowdy, seeking the recovery of damages for alleged personal injuries claimed to have resulted from fright occasioned by threats of his son and agent to evict her from a building she was occupying as a residence. The circuit court sustained a general demurrer to the petition as amended. The appellant excepted, and refused to plead further; whereupon the court entered judgment dismissing the action. From that judgment she has appealed.

According to the averments of the petition as amended, the appellant's husband, O. S. Smith, had been employed by the appellee to operate his grocery and restaurant in Campbellsville, Ky. then located in the front room of a building owned by appellee, that also contained back of the store two additional rooms, both of which, under the contract of his employment by appellee, were used by O. S. Smith, his wife, the appellant, and their daughter as a residence. Shortly after entering the appellee's service the appellant's husband died of influenza, which disease the appellant and her daughter contracted after his death; and while they were ill in the appellee's building the latter sent his son, as alleged, to demand of her possession of the rooms she was occupying, the principal entrance to which was through the storeroom of appellee in front of them. She declined to vacate the premises. Thereupon the appellee's son and agent threatened to "nail her up in said apartment in such way that she would not have use of the usual and customary means of ingress and egress through said store and the front of the building," this threat being followed by his beginning "with hammer, saw, nails, and planks" to nail up the door, but which work he immediately stopped at her command without closing the door as threatened, and did not again resume. It was further substantially alleged that the fright she sustained from the threats and conduct of the appellee's son caused her to vacate the rooms a day or two later, and, notwithstanding the cold and disagreeable weather then prevailing, travel 12 or 15 miles to the home of a relative in the country, by all of which she was, as alleged, subjected to great mental and physical pain and suffering, and her health permanently impaired.

Neither in the petition nor any of the amendments thereto is it alleged that the appellant, under the contract by which her husband had operated the grocery and restaurant for appellee, or any other contract, had any legal right to continue her occupancy of the rooms in question after the death of the husband; nor is it alleged that there was no other door than that mentioned, or no way other than that through the store, by which the appellant could get to or from the rooms. The petition and its amendments also fail to allege that the appellee's son and agent addressed to her or used in her presence any profane, abusive, or defamatory language touched her person, or offered or threatened to evict her from the rooms by physical force.

It is patent from the averments of the petition as amended, which, upon the demurrer, must be taken as true, that they fail to show the violation by the appellee of any legal duty he owed the appellant. Under the authorities it cannot be concluded from the facts stated that the acts of his agent complained of constituted a wrong in law, cognizable as trespass, trespass on the case, or breach of contract, for which an action in damages will lie. Whether in a form of conscience or correct morals they should be condemned as amounting to a breach of moral duty we need not say. It is our province merely to determine whether, in law, they constitute an actionable wrong.

In Cooley on Torts, p. 3, it is said:

"An act or omission may be wrong in morals, or it may be wrong in law. It is scarcely necessary to say that the two things are not interchangeable. No government has undertaken to give redress whenever an act was found to be wrong, judged by the standard of strict morality; nor is it likely that any government ever will."

Again, it is said by the learned author on page 29 of the same volume:

"A threat to commit an injury is also sometimes made a criminal offense, but it is not an actionable private wrong. Many reasons may be assigned for distinguishing between this case and that of an assault, one of them being that the threat only promises a future injury, and usually gives ample opportunity to provide against it, while an assault must be resisted on the instant. But the principal reason, perhaps, is found in the reluctance of the law to give a cause of action for mere words. Words never constitute an assault, is a time-honored maxim. * * *"

Reduced to a final analysis, the averments of the petition as amended manifest appellant's complaint to be that, after the appellee's agent demanded of her possession of the apartments she was then, without legal right, occupying, and her refusal to accede to the demand, by his threats of eviction and of nailing up the door between the rear of the store and the rooms, and thereby closing the customary way of entrance to the rooms through the store, so frightened the appellant as to compel her to vacate the rooms and undertake during inclement weather the journey to the country. It is not alleged that the appellee's agent executed any threat made to the appellant, but, on the other hand, stated in the last amendment filed to the petition, that he "desisted" from the attempt to nail up the door between the store and the rooms occupied by appellant when she demanded that he stop.

Although the appellant was merely a temporary occupant without right of the rooms in question, that fact would not have permitted her eviction from them by physical force; nor was the use of such force on the part of appellee's agent towards or upon the appellant alleged in the petition. The facts alleged do not even show force amounting to an assault; for, as defined by law-writers:

"An assault is an unlawful offer of corporeal injury to another by force, or force unlawfully directed toward the person of another, under such circumstances as create a well-founded fear of

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