Powell v. Powell

160 Wis. 504 | Wis. | 1915

KeewiN, J.

The first cause of action charged that on May 6, 1913, “in the town of Excelsior, county of Sauk, state of Wisconsin, the defendant, in the presence and hearing of Eloyd Darrow, Lula Powell, the plaintiff’s wife, and others, maliciously spoke of and concerning the plaintiff the following false and defamatory words: ‘You stole straw from your mother. You are a thief.’

“Eurther complaining, plaintiff alleges that by reason of the utterance of such false and slanderous words the plaintiff has suffered a great damage to his reputation and has suffered a great mental anguish, and has been damaged in the sum of two thousand dollars ($2,000).”

To this cause of action the defendant set up the counterclaim set forth in the statement of facts.

The decisions of this court construing the Code favor settling all controversies, so far as may be, in one action. In an action by plaintiff for assault and battery committed by the defendant on him, an assault by plaintiff on defendant in the same affray was held pleadable. Pelton v. Powell, 96 Wis. 473, 71 N. W. 887; Gutzman v. Clancy, 114 Wis. 589, 90 N. W. 1081. If in the same encounter, in an action by plaintiff for assault and battery, defendant may counterclaim for assault and battery committed on him, it seems clear that in a slander action tbe defendant may plead a slander arising at tbe same time and place as tbe slander set np in tbe complaint. It bas been beld by tbis court that tbe word “transaction” in sec. 2656, Stats., as applied to assault and battery cases, includes tbe entire physical encounter. Pelton v. Powell, supra; Gutzman v. Clancy, supra. It seems plain, therefore, that in slander cases “transaction” must include tbe entire word-encounter.

In Pelton v. Powell, supra, it was sought to limit “transaction” to contract relation, but that contention was overruled. Page 415. , If tbe counterclaim grows out of tbe same transaction and also defeats or modifies tbe plaintiff’s claim, it may be pleaded under Wisconsin decisions. Dietrich v. Koch, 35 Wis. 618; Weatherby v. Meiklejohn, 56 Wis. 73, 13 N. W. 697; Heckman v. Swartz, 55 Wis. 173, 12 N. W. 439. As to meaning of “transaction” as defined by tbis court, see Emerson v. Nash, 124 Wis. 369, 382, 102 N. W. 921; McArthur v. Moffet, 143 Wis. 564, 128 N. W. 445. True, there is some conflict of authority, as pointed out in Gutzman v. Clancy, 114 Wis. 589, 90 N. W. 1081, and Wrege v. Jones, 13 N. Dak. 267, 100 N. W. 705. We think, however, that this case is ruled by former decisions of this court heretofore cited, therefore the order of the court below is right and must be affirmed.

By the Court. — Tbe order appealed from is affirmed.