Raine v. Drasin

I concur in Parts V and VI of the majority opinion. However, at that point my brothers and I part company.

A

In deciding this case we do not write on a clean slate. The rule to be applied here was formulated over a century ago by this court in Woods v. Finnell, 76 (Bush.) Ky. 628 (1878) and more recently reiterated in Harter v. Lewis Stores, Ky., 240 S.W.2d 86 (1951). In Woods we said at 76 (Bush.) Ky. 633, 634:

“In cases where the plaintiff has mistaken his action, or been nonsuited, or where, by reason of some imaginary claim, he has seen proper to sue the defendant, it is not pretended that…