264 N.W. 201 | S.D. | 1935
Lead Opinion
Plaintiff brought this action against the defendants to recover damages because of an alleged assault. In the complaint, plaintiff alleges that the defendants, acting together, assaulted the plaintiff, then bound his feet with a rope, tied the rope to the tail of a horse and caused the plaintiff in this position to be dragged at a high rate of speed across rough and broken ground, rocks, and cactus to the great injury of the plaintiff. The answer first denied the allegations set forth in the complaint, then alleged that the plaintiff and the defendants did have trouble over a certain dam which was located on the land of these defendants; that the plaintiff insisted on watering his cattle at the dam against the protests of these defendants; that on a certain date these defendants were on the premises at the dam when the plaintiff came to the dam heavily armed and an altercation arose whereupon the plaintiff assaulted one of the defendants and a scuffle ensued, which is the identical transaction referred to in plaintiff's complaint, and which resulted in no real injury to the plaintiff. Then by way of counterclaim the defendants allege that the scuffle, above referred to, arose over repeated trespasses by plaintiff upon the lands of the defendants, which trespasses were for the purpose of using the water impounded by the dam; that the plaintiff, some days *72 prior to the scuffle above referred to, came upon the lands of the defendants and willfully and maliciously cut a trench through the dam and thereby let out some three thousand barrels of water. The counterclaim seeks to recover from the plaintiff damages suffered on account of the loss of this water. The trial court sustained the demurrer to the counterclaim, and this is an appeal from the order sustaining the demurrer.
The appellant takes the position that the counterclaim comes within the meaning of subdivision 1 of section 2354, which provides that a counterclaim might be pleaded when it is "a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action." This particular provision of our Code has been before this court on numerous occasions. See, Laney v. Ingalls, 5. S.D. 183, 58 N.W. 572; McHard v. Williams,
[1] Two of the above cases construing this statute should have our consideration at this time. These are the cases of Hoeven v. Morley, supra, and Slate v. Eastman, supra. These cases are cited in Pomeroy's Code Remedies (5th Ed.) page 1069, note, as holding that a cause of action based upon a tort can never be pleaded as a counterclaim in an action based on contract. That these two cases do so hold there cannot be much question, and to that extent the two cases are overruled. As stated in the case of International Harvester Co. v. Nelson, supra, the test under the statute is whether or not the facts alleged in the counterclaim arise out of the contract or transaction set forth in the complaint, or are connected with the subject of the action. If the facts alleged in the counterclaim do arise out of the contract or transaction set forth in the complaint, or if they are connected with the subject of the action, it is immaterial under the statute, whether such facts state a cause of action based upon contract or upon a tort, and it has been so held by this court on several occasions. See Driver v. Gillette, supra; Advance Thresher Co. v. Klein, supra; McHard v. Williams, supra, and Northwestern Port Huron Co. v. Iverson, supra.
[2, 3] It is appellants' contention that the facts alleged in the counterclaim are sufficiently "connected with the subject of the action" to make the counterclaim proper. Appellants insist that the facts pleaded in the counterclaim show that the assault of which plaintiff complains was the result of the plaintiff's acts in mutilating the dam on the defendants' premises, and that it, therefore, follows that the mutilation of this dam and the resulting damage to the defendants are connected sufficiently with the subject of the action of plaintiff's complaint to bring the counterclaim within the meaning of the statute. Plaintiff finds support for his claim in the cases of Mulcahy v. Duggan,
It appears to us that, so far as this case is concerned, the two torts, the one the assault, the other the mutilation of the dam several days prior to the assault, are entirely separate. While it might be said that the assault was in retaliation of the acts of the plaintiff, this, in our opinion, is not a sufficient connection with the subject of the action to make it a proper counterclaim within the meaning of the statute. To hold the counterclaim proper in this case would seem to us to go beyond the legitimate scope of the statute and be opposed to the construction placed upon similar statutes by the great majority of the courts. In this connection, see the cases cited in Pomeroy's Code Remedies (5th Ed.) § 666, in support of the general statement that "counterclaims of damages *75 from torts, when attempted to be enforced against causes of action for damages also arising from other torts, have, with few exceptions, been rejected."
The order appealed from is affirmed.
WARREN, P.J., and POLLEY and ROBERTS, JJ., concur.
Concurrence Opinion
Statutes similar to our own relating to joinder of causes of action and interposition of counterclaims have given rise to multitudinous decisions which are in a state of irreconcilable confusion in other courts as well as our own. Differing judicial definitions of the word "transaction" and of the phrase "subject of the action" may be found almost without limit. For a most interesting and capable treatment of the topic, citing and discussing a vast number of cases, see two articles by Professor Wheaton in 18 Cornell Law Quarterly, p. 20, p. 232, under the title, "A Study of the Statutes which Contain the Term `Subject of the Action' and which Relate to Joinder of Actions and Plaintiffs and to Counterclaims." In the instant case, I do not believe that the cause of action set forth in the counterclaim of appellants should be held, upon a proper interpretation of our statute, to be a cause of action "arising out of the * * * transaction set forth in the complaint as the foundation of the plaintiff's claim. * * *" Neither do I believe it should be held to be a cause of action "connected with the subject of the action" as instituted by respondent.
I concur, therefore, in the view that the order appealed from should be affirmed. *76