The plaintiff brought an action against the defendant to recover damages for assault and battery. The defendant filed a counterclaim based on the same incident as that alleged in the complaint charging that the tort was committed against him and seeking damages for his injuries. The plaintiff in his reply alleged that the counterclaim was barred by the statute of limitations. To this reply the defendant filed a demurrer which was sustained by the court. The jury returned a verdict in favor of the defendant on his counterclaim for $250 compensatory damages and $1,500 punitive damages. From the ensuing judgment plaintiff has appealed.
*543 The alleged assault and battery occurred on the twenty-seventh of March, 1958. The complaint was filed on March 16,1960, and the defendant was served on March 18, 1960. The answer containing the counterclaim was filed on March 29, 1960. Both the complaint and counterclaim alleged that the incident occurred “on or about March 27, 1958.”
The action is governed by the two-year statute of limitations, ORS 12.110 (1), and would have been barred after March 27, 1960. Defendant’s answer, therefore, was filed two days after the expiration of the statutory period, but the cause of action stated in the counterclaim was not barred at the time the complaint was filed. We are, therefore, called upon to determine whether, in these circumstances, the statute of limitations should be held to have run against the counterclaim. This is a new question in this state.
Preliminarily, we notice the contention of the defendant that the plaintiff waived the defense of limitations by setting it up in the reply instead of demurring to the counterclaim. The argument assumes that the fact that the action was barred appears on the face of the pleading and the decisions of this court which hold that when this is so the objection may be taken only by demurrer are relied on.
Dixon v. Schoonover,
We recognize, of course, that there are limits beyond which the courts will not go in the application of this rule of construction to particular cases. Thus, as the court said in
Newcomer v. Ament,
This court has held in a number of cases, of which Dixon v. Schoonover, supra, is the most recent, that, notwithstanding the running of the statute of limitations, a counterclaim may be employed defensively, that is by way of setoff or recoupment, either' to defeat altogether the plaintiff’s action, or diminish, the amount of his recovery. These cases, however, are not controlling because they do not involve the right of the defendant to recover an affirmative judgment and were decided without regard to the question whether the cause of action stated in the counterclaim was barred at' the time that the plaintiff filed his action. '
*545 The Oregon statute provides that the answer of the defendant shall contain “a statement of any new matter constituting a defense or counterclaim.” ORS 16.290 (2) (b). ORS 16.300 provides in subsection (1):
“The counterclaim mentioned in subsection (2) (b) of ORS 16.290 must be one existing in favor of the defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action:
“(a) A cause of action arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff’s claim.
In
Sturtevant v. Dowson et al.,
While there is a difference of opinion on the question, the majority of the courts hold that a counterclaim based on a causé of action which is not barred at the time of the commencement of plaintiff’s action is not thereafter barred because not .pleaded before the expiration of the full statutory time. 34 Am Jur 205, Limitation of Actions, §249; 54 CJS 342, Limitations of Actions, §285; Annotation, 127. ALR 909. The following cases support this view:
Perkins v. West Coast Lumber Co.,
120 Cal 27,
We have not cited oases involving setoffs or recoupments though the reasoning in some of these would seem to be fully applicable to counterclaims. See
McEwing v. James
(1880) 36 Ohio St 152;
Markley v. Michael
(1881) 8 Ohio Dec Reprint 269;
Williams v. Lenoir
(1875) 67 Tenn 395 (mutual accounts, affirmative judgment in favor of defendant for excess sustained);
Railroad v. Parks,
86 Tenn 554,
In Perkins v. West Coast Lumber Co., supra, an attorney brought an action to recover upon a special contract for professional services rendered to the defendant. Over four years after the commencement of the action the defendant pleaded a counterclaim for damages based on bad advice given him by the *547 plaintiff. The defendant’s claim was not barred at the time the action was commenced, but if he had brought an independent action it would have been barred at the time the answer was filed. The California court held that the counterclaim was not barred, saying:
“The claim was not barred when the complaint was filed, and that fact allows it to be set up as a counterclaim, though if standing alone the statute would run against it before the answer was filed. As to a counterclaim, the filing of the complaint suspends the running of the statute of limitations. By section 438 of the Code of Civil Procedure, it is held that the answer of a defendant may set up a counterclaim ‘existing at the commencement of the action.’ Lyon v. Petty,65 Cal. 322 , fully supports this view. In answer to this position, respondent claims that it is only in actions arising upon contract set up as counterclaims that the statute of limitations is held in abeyance by the filing of the complaint. We are satisfied that the principle applies also to counterclaims of the character here relied upon.” 120 Cal at 28.
The provision of our counterclaim statute relating to a cause of action arising out of the transaction set forth in the complaint is similar to that of California, although at the time of the decision in
Perkins v. West Coast Lumber Company,
supra, it was provided that the counterclaim must have been in existence at the time of the commencement of the action. This provision was eliminated by amendment in 1927, 44 Cal Jur 2d 614, Setoff and Counterclaim, §4;
Western Pipe and Steel Co. v. Tuolumne Gold D. Corp.,
63 Cal App 2d 21,
' The Arizona case of Tom Reed Gold Mines Co. v. Brady, supra, and the Missouri case of Concrete Steel Co. v. Reinforced Concrete Co., supra, were both decided upon the construction of statutes similar to that of California before its amendment and upon reasoning. similar to that of the California court in the Perkins case.
So, also, in Herbert v. Day, supra, a ease arising on; contract with a counterclaim for damages sustained by reason of the neglect of the plaintiff to perform his contract in accordance with its terms, the appellate division of the New York Supreme Court, in sustaining the counterclaim, which was not barred at the time the action was commenced, but would have been as an independent action at the time the' answer was filed, said:
“The provisions made for the allowance of counter-claims connected with or growing out of the subject of the action, support the construction Which has already been given to the statute prescribing the times within which actions must be commenced. (Code Civ. Pro., §501 sub. 1.) For without any restraint whatever, they are allowed to be relied upon by way of defense whenever the subject with which they may be connected is made the foundation of an action. No other circumstance has there been required to entitle the defendant to present his counter-claim than that it is connected with or arises out of the contract forming the foundation of the action. And as that was its character in this instance, the defendant was legally entitled to rely upon it for his protection as long as the plaintiffs could invoke the *549 aid of the same agreement to establish their demand against him.” 33 Han (NY) at. 464-465.
It would not be profitable to review the decisions on the other side of this question. They are collected in
*550 The court did not err in sustaining the demurrer to the reply.
The plaintiff requested the court to instruct the jury as a matter of law that the defendant was a trespasser in the plaintiff’s home at the time of the assault. The court submitted this question to the jury and the ruling is assigned as error.
A brief summary of the evidence bearing upon the point is necessary. The plaintiff, Doctor William D. Lewis, a dentist living in the city of Portland, is the former husband of the defendant’s cousin. They were divorced on March 19, 1958. The defendant, Parley Merrill, III, and his wife lived next door to the plaintiff. For reasons not necessary to be recounted, a feud had developed between the parties and the record is replete with incidents revealing the animosity of the plaintiff toward the defendant.
Doctor Lewis had listed his house for sale and on the evening in question Paul E. Powers, a real estate salesman, called upon him for the purpose of procuring his signature to an earnest money receipt containing an offer to purchase the property. The signature of the former Mrs. Lewis was also needed and Doctor Lewis telephoned Merrill and asked him to call Mrs. Lewis and have her call him (Dr. Lewis). This was about 9:30 in the evening after Merrill had gone to bed. Lewis testified that his request was met with abusive language. He testified as follows as to what occurred after the telephone conversation ended:
“By the time I hooked the back screen door, which I have to let the dachshund dogs run in and out, and started to go in the front room, he [Merrill] was at the front door.”
He said to Merrill: “Stay out. If you have got some *551 thing to settle, get yourself a lawyer.” The transcript proceeds:
“Q Then what was said?
“A Well, I don’t remember what he said, but he just kept coming right on in.
“Q Then what took place?
“A Well, he started after me violently. I hit him across the neck with the cane (motioning). Not over the head, but across the neck.”
The cane was broken in three pieces. In the ensuing fight Lewis received a beating which caused him to go to the hospital for treatment.
The real estate salesman, Powers, heard Lewis talking over the phone, but he was in another room and was unable to relate what was said. Concerning Lewis’ actions immediately after the telephone conversation, he testified:
“Well, I was sitting at the dining room table, and he came out and said, ‘My brother-in-law is coming over here.’ And then he made a beeline for the back of his house, and got his cane, and then came to the living room.”
A few seconds later, according to Powers, Merrill came to the front door, which was closed. There was a heated conversation between Lewis and Merrill in which the former said: “If you come in, I’ll let you have this cane.” Merrill did come in and “he did get the cane over his head.” The witness testified that when Merrill came to the door, Lewis was standing about five feet from the door armed with the cane.
Merrill’s version is quite different. He testified regarding the telephone conversation:
“A He [Lewis] said he wanted to sell the property, and he had the real estate man over there with him. He wanted to get ahold of his *552 ex-wife. Like I say, I told Mm, I said, ‘Don’t call us. Please don’t bother us. We don’t want to be involved in your troubles.’
“My wife answered the phone two nights prior to that, and told him to call Mr. McGeorge, Mrs. Lewis’s attorney, that he was handling the sale of the property. He became very abusive and called my wife some very violent and vulgar names. This was two nights prior to the time I went over there.
“The night I answered the telephone, that this incident occurred, he said, ‘You and that owl-eyed bitch of a wife of yours are the cause of all my trouble.’ I told him, ‘I don’t appreciate these names you áre calling my wife, and please leave us alone.’ And he said, ‘Come on over and we will settle this’- — so I went over.”
Merrill further testified that when he arrived at Lewis’ house Lewis met him at the door. He thought the door was open. He said that his purpose in going there was to tell the real estate salesman, Powers, that Mrs. Lewis wanted to be notified through her attorney and to request that they “not involve us in this difficulty they were having.” He did not recall that Lewis told him not to come in the house. Mrs. Merrill had followed him, and, according to the testimony of both of them, Lewis said: “You have got the whore with you.” The next thing that he remembered after entering the house was Lewis hitting him beside the head with a cane. He did not call Lewis any names, but only said: “Leave us alone. Just leave us alone. We don’t want you to bother us.”
Mrs. Merrill testified that the door was opened for her husband and that as he entered the house he told Lewis to “leave, us alone” and that. Lewis was saying: “You leave me alone. You get out of here.” *553 She did not remember Lewis telling her husband not to come in.
We do not 'think that under this evidence and the permissible inferences therefrom the court could say-as a matter of law that the defendant was a trespasser. The jury could have found that he entered the house of the plaintiff at the invitation of the latter and that the invitation was not withdrawn before he entered. They .could also have found that after the defendant got in the house he was told to leave. If he refused to comply with the demand then he would have lost his status as an invitee, but if, not having himself assumed the role of an aggressor, he was attacked by the plaintiff before he had an opportunity to comply with the demand, he would not, in that case, have been a trespasser.
There was no error in submitting the question to the jury.
Error is assigned to the admission in evidence over plaintiff’s objection of a police report. The report appears on its face to have been made by a member of the Portland Police Department regarding a burglary of the plaintiff’s house committed on March 22, 1958. A tape recorder was stolen and a footloeker in a room on the second floor was broken into. The report was produced by a city policeman who testified that he was assigned to the record bureau at police headquarters, that the report was kept in the regular course of business and that he had taken it from the file in response to a subpoena. Nothing further as to its authenticity was shown. The officer who made the report was not a witness. The report contains the following statement:
“Comp, [complainant] believes his ex wife who is going by the name of Lewis or Harris, Beth M. *554 living at 5258 S.E. Lambert and her cousin Merrill, Parley, who lives at 2019 S.E. Cypress (next door to comp.) is responsible for the theft. As he had kept money in the trunk upstairs at times and since the door to the upstairs room was locked someone had to know where the key to the door was hidden (on top the door molding.) * * * Comp, stated he has had nothing but trouble from his ex wife and her cousin.”
The complainant referred to in the report was the plaintiff, Doctor Lewis. There had been no force-able entry into plaintiff’s house and the indications were that the crime was probably committed by someone familiar with the premises. Before the introduction of the police report the plaintiff had been questioned about the matter on cross examination and testified that he did not accuse the defendant of the crime, but that in answer to a question by the police officer “Who do you suppose did that?” he said “I don’t know. There were only three people besides myself who knew how to get into that place and knew I kept valuables in that footlocker.” He told the officer that these were his former wife and the defendant and Mrs. Merrill.
The report was offered on the theory that it was relevant on the subject of malice and was admissible for purposes of impeachment. Its reception is claimed to be authorized by ORS 41.690, The Uniform Business Eecords as Evidence Act. Whether the act is applicable to a record of this character need not be decided, though
Snyder v. Portland Traction Company,
The court erred in admitting the evidence and, as we cannot say that the ruling was not prejudicial to the plaintiff, the error is ground for reversal.
The judgment is reversed and the cause remanded for further proceedings in conformity with this opinion.