Anderson v. Hill, 53 Barb. 238

Anderson v. Hill

53 Barb. 238 | N.Y. Sup. Ct. | 1869

By the Court, Johnson, J

The first and third grounds of demurrer are not well taken. In regard to the first, that the complaint contains two distinct causes of action, which are not separately stated, it is not a cause of demurrer specified in section 144 of the Code, and the weight of authority most decidedly is that an error or defect of that kind is to be corrected by motion, and is not demurrable. As to the third ground, a cause of action sounding in tort is stated ip. the complaint against the defendant Margaret *244and her husband: the other defendant is properly joined in such a case. (Code, § 114.)

The second ground, that two distinct and independent causes of action are improperly joined, must be held also to be not well taken if the decision in Brewer v. Temple, (15 How. Pr. 286,) is good law. That is a special term decision, and with all respect for the learned justice by whom it was pronounced, I think it is not sound law.

The complaint here, as in that case, states facts constituting a clear cause of action for an assult and battery, and also a clear cause of action for verbal slander, both in a single count, and alleges that the plaintiff was greatly injured in her person", and also in her character and feelings, and claims damages generally, for the sum of $2000. This relief is demanded for the combined injuries, and not for each injury separately. The causes of action are not separately stated, as required by the Code, and every other tolerable system or idea of pleading, but both are intermingled and woven together in a single fabric of manual and vocal tort. Causes of action for words and blows thrown into “hotchpot” and counted upon in that condition. Nothing is claimed as damages for the injury arising from the battery, as such, and nothing for the injury arising from the slander. Neither cause is claimed to have injured separately, but the injury and consequent damages spring from the union of the two wrongs. Should a verdict be rendered in the plaintiff’s favor, it must necessarily be a single verdict, and it would not appear and no one could ascertain, not even the parties themselves, how much the plaintiff had been injured in person, or how much in character, nor what measure of compensation had been awarded for either injury. Surely justice ought not to be so administered, unless the statute imperatively requires it.

The Code (§ 167) prescribes what causes of action may *245be united in the same complaint, and classifies the causes. It provides that different causes of action may be so united “ where they all arise out of, 1. The same transaction or transactions connected with the same subject of action; 3. Injuries with or without force to person and property; or, 4. Injuries to character,” and proceeds, making seven separate and distinct classes by numbers. It then concludes : “ But the causes of action so united must all belong to one of these classes, and must be separately stated.” One of the causes of action in this complaint belongs to class 3, and the other to class 4. Hence there is an union of causes of action in violation of the express terms of the section. It is claimed, however, by the plaintiff’s counsel, that the assault and battery, and the slander arose out of the same transaction, inasmuch as both causes originated or occurred, at the same period of time, and therefore both belong to the first class. This is what is held in Brewer v. Temple, (supra.) But it by no means follows that because the two causes of action originated, or happened, at the same time, each cause arose out of the same transaction. It is certainly neither physically nor morally impossible that there should be two transactions occurring simultaneously, each differing from the other, in essential attitudes and qualities. As, here, the transaction out of which the cause of action for the assault springs, is the beating, the physical force used; while the transaction out of which the cause of action for slander springs, is not the beating, or the force used, but defamatory words uttered. The maker of a promissory note might, at the very instant of its delivery and inception, falsely call the payee a thief; and yet who would say that the two causes of action arose out of the same transaction. It has been held that a contract of warranty and a fraud practiced in the sale of a horse, at the same trade, did not arise out of the same transaction, so as to be connected each with the same súb- *246. ject of action, and that a complaint containing both causes of action was demurrable. (Sweet v. Ingerson, 12 How. Pr. 331.) This was a general term decision, and of course as authority, has greater weight than that of Brewer v. Temple. Assault and battery and slander are as separate and distinct causes of action as any two actions which.can i be named. True they are both torts, but they do not belong to the same category or class, either at common law or by the Code. Indeed the Code, in express terms, enumerates and classifies them separately. The subjects of the two actions are not connected with each other. Bach subject of action is as distinct and different from the other as the character of an individual is from his bodily structure. The question is not whether both causes of action sprung into existence at the same moment of time. Time has very little to do in solving the real question. -The question is, did each cause of action accrue or arise out of the same transaction, the same thing done ? It is apparent that each cause of action arose, and indeed must necessarily have arisen out of the doing of quite different things, by the defendant. Different in their nature, and all their qualities and characteristics, and inflicting injuries altogether different and dissimilar. The same evidence would not sustain either cause of action, and they may require different answers. The same answer might not be appropriate to both. The most skilfull pleader, whose learning and experience dates back to. the era before the Code, would, as it seems to me, find himself sadly at fault as to the proper answer to be made to such a complaint, unless he should find a general denial all that was necessary for a proper defense to both causes of action. But this goes upon the score of convenience merely, and is of no moment if the Code authorizes the joinder. But I am clearly | of the opinion that it does not, and that the demurrer \ should have been sustained upon the second ground. The *247order overruling the demurrer must therefore be reversed and the demurrer sustained, with leave to the plaintiff to amend Ms complaint by stating one cause of action, upon payment of costs of the demurrer.

[Monroe General Term, March 1, 1869.

E. D. Smith, Johnson and J. G. Smith, Justices.]