dissenting opinion:
Appellant, Maggie Reed, filed this suit against appellee, William Maley. He demurred to the petition; his demurrer was sustained; and, she declining to plead further, the petition was dismissed. From this judgment she appeals.
Whether the facts in the petition are sufficient to constitute a cause of action is the only question to be determined on the appeal. These facts are as follows: The plain*825tiff was a married woman, a resident of Fleming county; on October 19, 1898, she was at her home, sitting near a window in her house. The defendant came to the house, approached very near to the window, proposed to her to have sexual intercourse with her, saying to her, “Won’t you meet me out somewhere? Won’t you meet me alone somewhere?” She indignantly refused the proposal. It is charged in the petition that the defendant committed a trespass thus against the person of the plaintiff, and illegally, willfully and maliciously thus made a criminal assault upon her; that thereby she was frightened, humiliated, and caused great mortification and shame, and was greatly excited, unnerved and damaged. The amount of the damages was laid at $3,000, for which judgment was prayed.
So much of the opinion of the court is concurred in as holds that the petition fails to state facts sufficient to constitute a cause of action for assault. See Stivers v. Baker, 87 Ky., 508, 10 R., 523, 9 S. W., 491; 3 Cyc., 1025; Bennett v. McIntire (Ind. Sup.), 23 N. E., 78, 6 L. R. A., 736. But on another ground it is submitted that the petition is sufficient.
In State v. Avery. 7 Conn., 266, 18 Am. Dec., 105, the defendant was indicted for sending to a married woman a letter written by hiii,{ proposing carnal intercourse with her. It was urged that he could not be punished for criminal libel because there was no publication of the letter; but the court held thiat the sending of such a letter, without any publication, jis clearly an offense of a public nature and punishable as such, as it tends to create ill blood and cause a disturbarme of the public peace; that, adultery being an offense, an.-attempt to commit it, or a solicitation to another to eomfmit it, is a misdemeanor. In Connecticut, *826when this case was decided, adultery was a feiony. By our statute it is only a misdemeanor. Kentucky Statutes, 1899, section 1320. In Smith v. Commonwealth, 54 Pa., 209, 93 Am. Dec., 686, it was held that solicitation to adultery is not indictable where adultery is by law made only a misdemeanor. But it is hard to see why the solicitation .to commit a felony should be punishable, and not that to commit a misdemeanor, nor does the weight of authority l ¡sustain this distinction. In 1 Bishop on Criminal Law, section 768, it is said:,, “Though to render a solicitation in- : dictadle, it -is, in general, as in other attempts, immaterial I whether the thing proposed is technically a felony or a ¡misdemeanor; yet, as the soliciting is the first step only in ¡a gradation reaching to the consummation, the thing intended must, on principles already explained, be of a grayer /nature than if the step lay further in advance.”
In Com. v. Tibbs, 31 Ky., 524, the defendant was indicted for challenging another to duel. The proof showed that when they had been quarreling Tibbs said to 'him, “I am told you carry weapons for me. I will fight you a duel with a pistol or rifles from one step to a hundred yards.” The court held that, considering the occasion and the accompanying circumstances, the words did not necessarily import a demand, but only willingness to fight if the other person desired such an encounter. It then added: “Such words might amount to a misdemeanor at common law, for they may be deemed an insinuation of a desire to fight with deadly weapons, which might provoke such combat, and which, therefore, is punishable as a misdemeanor.”
In United States v. Lyles, 4 Cranch, C. C., 469, Fed. Cas. No. 15,646, it was held a misdemeanor to solicit another to commit a breach of the peace. -So it\ has been held in*827dictable at common law, independently of statute, to solicit a witness not to testify before tbe grand jury or on the trial of the case. State v. Keyes, 30 Am. Dec., 450, 8 Vt., 57. In this case the court, by Judge Redfield, said: “It is equally well settled that an endeavor to induce another to commit a felony or misdemeanor is indictable as a common-law offense. . -. . And we feel no hesitation in saying that the attempt to commit an offense, or the soliciting another to commit an offense, should (with few exceptions, not necessary to be enumerated here, resting upon peculiar ground) be held indictable as misdemeanors at common law.”
In Com. v. Willard, 22 Pick., 476, the court, in attempting to define those cases in which solicitations are indictable, said: “One consideration, however, is manifest in all the cases, and that is that the offense proposed to be committed by the counsel, advice or enticement of another is of a high and aggravated character, tending to breaches of the peace or other great disorder or violence, being what are usually considered mala in se, or criminal in themselves, in contradistinction to mala proMMta, or acts otherwise indifferent than as they are restrained by positive law.”
In a note to State v. Butler (Wash.), 35 Pac., 1093, 25 L. R. A., 434, 40 Am. St. Rep., 900, the authorities are exhaustively collected, and, criticising the rule followed in some of the States, the learned editor, summing .up the authorities, says: “But that rule does not allow for the growth of the common law, which is certainly a thing of growth. In fact, indictments for solicitation to crime are of comparatively modern origin, and in some cases have not been used until quite recently. The true rule would seem to be that suggested by Judge Lawrence in Rex v. *828Higgins, 2 East, 5, who made the question of indictability depend upon whether or not it is prejudicial to the community.”
Adultery is a grave offense under the moral law. A solicitation to commit adultery, if. unsuccessful, is liable to lead to violence and bloodshed at the hands of the relatives of the woman; and if successful it defeats the end for which marriage was intended, and destroys the woman. It seems anomalous to say that a solicitation to commit a breach of the peace, or to disobey a subpoena, is at common law indictable, but that solicitations to adultery are no offense, although necessarily attended with more* serious consequences to the community. It may therefore be safely concluded' that solicitation to adultery is a common-law offense, and may be indicted as such.
But aside from this, section 1271, Kentucky Statutes, 1899, makes it a misdemeanor for any one to use in the presence of another person “any abusive or insulting lang- ; uage, intending thereby to insult such other person or persons, or with the intent to provoke an assault.” The ! proposal of the defendant to the plaintiff was equivalent to a charge of unchastity, and was grossly insulting. It iwas intended as a charge of unchastity, and was therefore ¡intended to insult her. If A said to B, “You have stolen 'my watch,” he would not be excused on the ground that he did not expect B to take it as an insult. If the words used are insulting and are intended as an insult, there is an intention to insult, although there is no expectation that the insult will be resented. The defendant might therefore have been prosecuted under this statute. His act I being punishable criminally, can it also be made the sub-f ject of a civil action for damages? In Bishop on Non-Contract Law, section 73, it is said: “The doctrine, in general *829terms, is that the civil wrong and the criminal are legally distinct things, though both may proceed from one act of the offender. If the injury is of a nature falling on the entire community, an individual, suffering from it only as others do, can maintain no action against the wrongdoer, even should it in degree casually press more heavily upd|¡^ him than upon others, But he who suffers a special dam-^ age may have his suit, though by reason of the public harm the defendant is also indictable.” This principle was approved by this court in City of Henderson v. Clayton, 22 R., 283, 57 S. W., 1, 53 L. R. A., 145, and Hutcheson v. L. & N. Railroad, 108 Ky., 615, 22 R., 361, 57 S. W., 251. Section 466, Kentucky Statutes, 1899, also provides: “A person injured by the violation of any statute may recover from the offender such damage as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed.”
It is insisted for the appellee that the petition shows no special damage, and authorities are cited to the effect that- mental suffering, not accompanied with any physical injury or actionable wrong, is insufficient to constitute the basis of an action. But this rule does not apply to wrongs done maliciously or with insult, where the mental suffering is the natural and proximate consequence of the wrong, and there is, aside from it, a recognized cause of action. Amer. & Eng. Ency. of Law (2d Ed.), 667-669. See, also,. 1 Sedgwick on Damages, section 47.
It is charged in the petition that the plaintiff was excited, unnerved and damaged by the wrongs of the defendant. If she was made sick or lost time, this would be a special damage entitling her to maintain an action under the rule, although the sickness or loss of time was the result of the mental condition produced by the defendant’s *830wrong; for his wrong was the primary cause of the trouble, and the damage was the proximate and natural result of it. One who is unnerved is in an abnormal condition or sick, and, if this condition was the proximate result of the defendant’s act, the plaintiff has suffered special damages therefrom within the meaning of the rule. She may recover compensation for the injury she sustained, and, in addition to this, the jury may in their discretion award such sum by way of punitive damages as they may deem proper. For the action is in the nature of an action of trespass on the case for a malicious wrong, and punitive damages may be awarded as in actions for slander or malicious prosecution. The purity of woman and the sanctity of the marriage relation lie at the basis of our whole social fabric, and attempts to destroy them are grave offenses. The law is inadequate indeed if it leaves such offenses to be punished wholly by the relatives of the injured woman. This brings about bloodshed and disregard of the law itself. The actual injury that may be done to a virtuous yoman by a wrong of this description is incalculable. If ,.the plaintiff had suffered a miscarriage or sustained some direct pecuniary loss as the proximate result of the wrong, ; it would hardly be doubted that she might maintain an ac-i tion for the damages thus sustained by her. But when she Us crushed under the insult and unnerved and made sick, the damage or injury, though different in a degree, is none the less actual than in the case supposed. In 8 Amer. & Eng. Ency. of Law it is said: “There has never been doubt that a defendant whose act amounts in law to a legal wrong is responsible in damages for all the loss which is both natural and proximate consequence of his wrongful act.” Page 69. “Though an act of the plaintiff himself has intervened between the defendant’s wrong and the injury *831suffered, the latter is not thereby excused, if the intervening act was the result of or naturally' and reasonably induced by the defendant’s earlier wrong.” Page 578. The same rule is laid down in 1 Sedgwick on Damages, section 129: “The true test would seem to be whether the action of the intervening agency was such as was to be expected to happen upon the defendant’s act. If it were 'so to be expected, the result is not remote. In the case of a human agency, the intervention will generally be of a sort not to be expected. But where the intervention was directly and naturally induced by the defendant’s act, the consequence is not remote, though the intervening-agency was human.” The natural effect of an indecent proposal of this character to a virtuous woman would be to upset her nerves and unfit her for discharging for the time ! her domestic duties. It would as truly make her sick as! the administration of a nauseous drug, and such a result) was reasonably to be expected. The injury in the one case | is none the less actual and none the less natural than the ■ other.
I therefore dissent from the opinion of the court.