
    Case 61 — ACTION FOR INJURY CAUSING DEATH
    April 29.
    Morehead’s Administratrix v. Bittner, Etc.
    APPEAL PROM IVAREEN CIRCUIT COURT
    1. Action Under Sec. 4, Ky. Stats. — Under section 4 of the Kentucky. Statutes an iron bar is a “deadly weapon.”,-,
    2. Same — Revivor.—An action under that section is not^an “assault” within the meaning of section 10. The gravamen of the action is the injury to the widow and children and the action may be revived by them after the defendant’s death against his personal representatives.
    LEWIS M’QUOWN, por appellant.
    1. There was no right of action at common law for intentional killing. Winnegar, admr., v. Cen. Pass. R. Co., 85 Ky., 551; Morgan v. Thompson, 82 Ky., 383.
    2. Kentucky Statutes authorizing widow and children to recover damages for death of husband and father. Act. Mar. 10, 18-56 (2 Rev. Stat., 50-9); sec. 2, ch. 1, Gen. Stat.; sec. 4, ch. 1, Ky. Stat.; ch. 31, 2 Rev. Stat., 429.
    3. Construction of statutes — the rule of ejusdem generis. Kennedy v. Foster, 14 Bush, 482; Com. v. Kammerer, 11 Ky. Law Rep., 777; Brooks v. Cook, 44 Mich., 617; Moore v. Settle, 82 Ky., 187; Reg. v. Whitnosh, 7 B. & C., 596; City of St. Louis v. Laughlin, 49 Mo., 559.
    4. Actions for assault or trespass vi et armis do not survive. Ky. Stat., sec. 10, ch. 1; Perkins v. Stein & Co., 94 Ky., 433; Moe v. Smiley, 125 Pa. St., 136; s. c. 17 Atl. Rep., 228; Hamilton v. Jones, 25 N. E. R., 192; Hegerich v. Keddie, 99 N. Y., 258; Ott v. Kaufman, 68 Md., 56; Russell v. Sunbury, 37 O. St., 37.
    5. When trespass vi et armis lies. 1 Chit-ty’s PI.,- (11 Am. ed.) p. 167; Smith v. Hancock, 4 Bibb., 222.
    JOHN B. GRIDER, por appellees.
    Counsel stated the propositions of law relied on by counsel for appellant for reversal as follows: first: the court erred in overruling the demurrer to the petition; second: the court erred in permitting the action to be revived. .Counsel thereupon discussed the two propositions in their order and against the conclusions reached by counsel for appellant, made the following Citations: Ky. Stats., secs. 410, 1242, 1166, 1308, 1313; Wilson v. Com., 3 Bush, 105; Com. v. Branham, 8 Bush, 387; Donahue v. Drexler, 82 Ky., 157; Philpot v. Com., 86 Ky., 595; Evans v. Com., 11 Ky. Law Rep., 551; Com. v. Duncan, 91 Ky., 592.
    B. E. PROCTOR, also for the appellee.
    'Counsel discussed the same questions urged by counsel for appellant and combatted by his associate counsel for appellee and made citations as follows: Donahue v. Drexler, 82 Ky., 187; Spring v. Glenn, 12 Bush, 172; Becker v. Crow, 7 Bush, 198; 'McLure v. Alexander, 15 Ky. Law Rep., 732; McLurg v. Ingléhart, 33 S. W. R., 80; Alexander v. Arnold, 79 Ky., 370.
   JUDGE DuRELLE

delivered the opinion of the court.

Appellees, who are the widow and children of Robert Bittner, brought suit against J. S. Morehead, alleging that he “wantonly and maliciously, and not in self-defense, assaulted, wounded, and struck and killed said Robert Bittner with a deadly weapon, a bar of iron, and from the effects of said wounding and striking said Bittner died,” to the damage of appellees. A demurrer to the petition was overruled. Pending the litigation the defendant died. His widow qualified as administratrix, and a motion was made by appellees, and sustained, to revive the action against her as administratrix. A trial was had, resulting m a verdict for appellees, and the appellant has brought the case here for review.

No bill of exceptions was filed, but appellant’s counsel relies upon two propositions of law:

First, that the demurrer to the petition should have been sustained, because an iron bar is not a deadly weapon, within the meaning of section 4 of the Kentucky Statutes.

Second, That the action did not survive against the administratrix of Morehead.

Upon the first question, counsel for appellant has submitted a most ingenious and plausible argument, upon the theory that at common law there was no right of action for an intentional killing; that the act of March 10, 1856, (2 Revised Statutes, page 509, the original of Kentucky Statutes, section 4), prohibited the buying, selling, and dealing in the weapons popularly known as “colts,” “brass knuckles,” “slung shots,” or any imita-tion or substitute therefor, and then gave such right of action by providing that “should any person be killed by the weapons aforesaid, or any one of them, or in any other way, except in self-defense,” the wife and heirs at law should have a right of action against all concerned in such killing; that in the General Statutes (chapter 1, section 6) the language of the statute was altered by giving a right of action to the widow or minor children “of a person killed by the careless, wanton or malicious use of firearms, or by any weapon popularly known as colts, brass knuckles, slung shots, or other deadly weapon, not in self-defense,” and this section of the General Statutes was subsequently amended by adding to the list of weapons the words “or sand bag, or any imitation or substitute therefor;” and that the history and phraseology of the statute, and the legislative construction given it, as evidenced by the additions made thereto, show that the rule of ejusdem generis should be applied in its construction, so as to make the words “or other deadly weapon” apply only to the weapons enumerated in the list, and to other weapons of like character, manufactured for use as weapons, and which could be carried concealed about the person. It is further urged that, if the meaning of the section is as contended for by appellees, and it gives a right of action for killing by any weapon whatever, the enactment and re-enactment of the dueling statute ( 1 Revised Statutes, page 429; General Statutes, c. 32; Kentucky Statutes, section 5) would have been entirely unnecessary. A number of cases are cited illustrating «the application of the ejusdem generis rule; special reliance being placed upon the construction given to the statutes against gaming in Com. v. Kammerer 11 Ky. Law Rep., 777, [13 S. W., 108], and Moore v. Settle, 82 Ky., 187 [56 Am. R., 889].

There is much force in the argument. But the original statute, after prohibiting, in the first section, the sale of the enumerated weapons, and, in the second, imposing a penalty against any person who should strike, beat, wound, or bruise another with any of the weapons named in the first section, proceeded, in the third section, to give a right of action, “should any person be killed by the weapons aforesaid, or any of them, or in any other way, except in self-defense.” Some force should be given, if possible, to the words “or in any other way;” and this can hardly be done, if they are restricted to weapons of a similar character to those enumerated, or weapons of a similar character had already expressly been included in the statute, under the words “or any imitation or substitute therefor.”

The language of the third section is much more comprehensive than that of the second, where a right of action is given to a person injured by any of the weapons named in the first section.

It may be further observed .that, when the act of 1856 was carried into the General Statutes, neither section 2 nor section 3 was placed under the title of that act, viz: “To Prevent the Selling and Using of Certain Weapons;” but both sections were placed under the head of “Actions in Certain Cases Allowed;” section 2 of the act of 1856 becoming section 1 of chapter 1, and section 3 becoming section 6, with the addition of the word “firearms” to the list of weapons, and with the change of the words “or in any other way” to “or other deadly weapon.” The first section of the act of 1856 is not carried into the General Statutes. In the Kentucky Statutes we find the addition of the words “or sand bag, or any imitation or substitute therefor.”

The statutes as to the carrying of concealed deadly weapons obviously refer to things made for use as such; for in those cases the gravamen of the offense consisted in fihe nature of the weapon, and its being carried concealed. To come wfthin the inhibition of the statute, the weapon must be of the character denounced, independently of the use to which it is put. But where the gravamen consists in the use which is made of the weapon, and a penalty is imposed, or a right of action given, for injuries inflicted with a deadly weapon, the decisions in this State are not altogether in line with those of some of the other States, but the inquiry seems to be whether the weapon was deadly, in the sense that, as used, it was capable of causing death; and it has been generally held that, within such statutes, a weapon was deadly, provided it was capable of being used in the manner denounced by the statute.

Of course, where the statute imposes a penalty upon any one who shall “cut, thrust or stab another person with a knife, dirk, sword or other deadly weapon, without killing,” etc., striking with a blacksmith’s tongs is not an offense embraced therein, because the varieties of wounding embraced in the statute do not include such wounds as could be made by tongs. (Com. v. Hawkins, 11 Bush, 603, considering General Statutes c. 29, article 17, section 1.) 'And so it has been held that a club was not included under that statute.

But where, as in General Statutes c. 29, article 6, section 2 (Revised Statutes c. 28, article 6, section 2), the language used was, “cut, strike or stab another with a knife, sword or other deadly weapon,” it was held (in Com. v. Branham, 8 Bush, 387) that the words were not restricted to weapons or instruments made for the destruction of life or the infliction of injury, but embraced a chisel.

In Wilson v. Com., 3 Bush, 105, in an opinion by Judge Robertson it was held that the language used included an as; that the constructive rule, ejusdem generis, did not apply; and that the words “or other deadly weapon” were unrestricted, meaning “just what the words literally import.”

In Philpot v. Com., 86 Ky., 595, [6 S. W., 455], it was held, speaking of the words “cut, strike or stab:” “This language has reference, First, to any instrument which is capable of being used for the purpose of cutting, thrusting, or stabbing a person, and which may be dangerous to his life, if used by the assailant for that purpose; or, second, any instrument capable of being used for the purpose of striking a person, and which may be dangerous to his life, if used by the assailant for that purpose. There is no doubt that a sledge hammer falls within the second class.”

In Com. v. Duncan, 91 Ky., 594, [16 S. W., 530], it was held, that under this statute a stone might be included under the words “strike . . . another with a . . . deadly weapon, with intention to kill,” &e.; but that, in that case, the question whether the stone was of sufficient size.to constitute it a deadly weapon, when used in the manner in which it was used, should have been left to the jury.

In Evans v. Commonwealth, 11 Ky. Law Rep., 551, [12 S. W., 767], it was held, in an opinion by Judge Lewis, that a pitchfork was a deadly weapon, and that that question need not be left to the jury.

In view of this construction of similar language, in the light of which the section has been several times substantially re-enacted, we are constrained -to the conclusion that this statute intended to embrace any killing done with a weapon either in itself deadly, or deadly when used in -the manner in which it was used. The demurrer was, therefore, properly overruled.

The second objection is based upon the theory that the cause of action did not survive against the personal representative, because the statute does not authorize an action against any one save the wrongdoer himself, and, further, that it was, in substance, an action for an assault, and, therefore, died with Morehead, by virtue of section 10 of the Kentucky Statutes, providing that “actions for assault, slander, criminal conversation,” etc., “shall cease or die with the person injuring or injured,” and great stress is laid upon the fact that the averment of the cause of action contains every element of an assault; and cases from Pennsylvania, Indiana, and other States are cited, where it was held that like actions abated at the death of the wrongdoer.

We are unable to concur with the reasoning of these cases. The doctrine in this State is based upon a different theory. It is not that the wife or minor children recover damages for the assault upon the husband or father, bu-t as said in Donahue v. Drexler, 82 Ky., 157 [56 Am. R., 889], through Chief Justice Hargis — a case where the husband, before his death, had made a settlement and accepted a compromise for the damages done to him — “this statute creates a new grievance, a new cause of action, in which neither the deceased nor his estate has any interest, and for which his administrator could not sue. It is based upon the wrong to the wife and children, by depriving them of their natural support and protection which the law gives them in the husband and father. The injury is to them and their rights. They have the exclusive right of action, under the statute, and are entitled personally to the results of any judgment that may be recovered.”

The statute, in our view, was not designed merely to impose punishment on the wrongdoer in addition to such punishment as might be imposed under the penal laws. It was primarily a statute providing compensation for a violation of the rights of the wife and children. This being so, and the action not being in any sense an action for assault, it follows that by virtue of the very terms of section 10, Kentucky Statutes, it survives against the personal representative of the wrongdoer.

For the reasons given, the judgment is affirmed.  