Carr v. Neva
| Decision Date | 26 September 1917 |
| Citation | 164 N.W. 729,38 N.D. 158 |
| Court | North Dakota Supreme Court |
On petition for rehearing filed October 5, 1917.
Appeal from District Court, Stutsman County, Honorable J. A. Coffey Judge.
Affirmed.
Knauf & Knauf, and Edward P. Kelly, for appellants.
One tort may be counterclaimed against another tort where the two arise out of the same transaction.
The statute means something more than matters of contract--arising out of the same transaction; it may be a "performance" or an "affair;" it may mean two persons engaged in performing torts against each other. Comp. Laws 1913, § 7449; Webster; Advance Thresher Co. v. Klein, 28 S.D. 177, L.R.A.1916C, 514, 133 N.W 51; Hannahs v. Provine, 28 S.D. 200, 133 N.W. 53; Pelton v. Powell, 96 Wis. 473, 71 N.W. 887; Rev Stat. U. S. §§ 2655, 2656; Vilas v. Mason, 25 Wis. 310; McArthur v. Green Bay & M. Canal Co., 34 Wis. 139; Gilbert v. Loberg, 86 Wis. 661, 57 N.W. 982; Collins v. Morrison, 91 Wis. 324, 64 N.W. 1000; Wood v. Pierson, 45 Mich. 313, 7 N.W. 888; Ryan v. Lewis, 3 Hun, 429; Heigle v. Wills, 50 Hun, 588, 3 N.Y.S. 497; Slone v. Slone, 2 Met. (Ky.) 339; Schnaderbeck v. Worth, 8 Abb. Pr. 37; Sheehan v. Pierce, 70 Hun, 22, 23 N.Y.S. 1119.
A counterclaim must be a cause of action arising out of the same transaction, and that this prescription includes actions of tort is plainly indicated by the fact that it is contradistinguished from that contained in subdivision 2, which is confined to actions on contract. Comp. Laws 1913, § 7449, subd. 1; Heigle v. Willis, 50 Hun, 588, 3 N.Y.S. 497.
Where two parties engage in a fight, and the party who thinks himself to have been assaulted and beaten brings action for damages, the other party may counterclaim and show the excessive and unnecessary force and violence used against him. Dole v. Erskine, 35 N.H. 510; Elliott v. Brown, 2 Wend. 499, 20 Am. Dec. 644; Cooley, Torts, 165; Darling v. Williams, 35 Ohio St. 63; Gizler v. Witzel, 82 Ill. 322; Cockcroft v. Smith, 2 Salk. 642, 91 Eng. Reprint, 541; State v. Wood, 1 Bay, 351; Curtis v. Carson, 2 N.H. 539; Philbrick v. Foster, 4 Ind. 442; Bartlett v. Churchill, 24 Vt. 218; Brown v. Gordon, 1 Gray, 182; Ogden v. Claycomb, 52 Ill. 365; Riddle v. State, 49 Ala. 389; Williams v. State, 44 Ala. 41, and cases cited; Carpenter v. Manhattan L. Ins. Co., 93 N.Y. 556; Murphy v. McQuade, 20 Misc. 671, 46 N.Y.S. 382; Rev. Codes 1899, § 5274; Hanson v. Skogman, 14 N.D. 447, 105 N.W. 90.
Where questions call for the mere conclusion of the witness and proper objection is made, it is error to admit such testimony. Porter v. Valentine, 18 Misc. 213, 41 N.Y.S. 507; Morrissey v. Ingham, 111 Mass. 63.
The justice court had no authority to enter any judgment, and evidence thereof was incompetent and immaterial. Code, § 8961; Crisp v. State Bank, 32 N.D. 263, 155 N.W. 78.
Where the court erroneously admits testimony, but afterwards strikes it out, the original error is generally cured. But there is a well-defined exception to the rule, which is also established as a general rule itself, and that is "where the evidence thus admitted is so impressive that, in the opinion of the appellate court its effect is not removed from the minds of the jury by its subsequent withdrawal, or by an instruction of the court to disregard it, the judgment will be reversed on account of its admission and a new trial granted." 38 Cyc. 1441-1443; State v. McGahey, 3 N.D. 293, 55 N.W. 753; Bishop v. Chicago, M. & St. P. R. Co., 4 N.D. 536, 62 N.W. 605; Thomp. Trials, § 723; Armour & Co. v. Kollmeyer, 16 L.R.A. (N.S.) 1110, 88 C. C. A. 242, 161 F. 78; Hopt v. Utah, 120 U.S. 430, 30 L.Ed. 708, 7 Sup Ct. Rep. 614; Waldron v. Waldron, 156 U.S. 363, 39 L.Ed. 453, 15 S.Ct. 383; Whittaker v. Voorhees, 38 Kan. 71, 15 P. 874; Tourtelotte v. Brown, 4 Colo.App. 377, 36 P. 73; Taylor v. Adams, 58 Mich. 187, 24 N.W. 864; Foster v. Shepherd, 258 Ill. 164, 45 L.R.A. (N.S.) 167, 101 N.E. 411, Ann. Cas. 1914B, 572; Chicago Union Traction Co. v. Arnold, 131 Ill.App. 599; Sinker v. Diggins, 76 Mich. 557, 43 N.W. 674; Wojtylak v. Kansas & T. Coal Co., 188 Mo. 260, 87 S.W. 506; Chicago, M. & St. P. R. Co. v. Newsome, 98 C. C. A. 1, 174 F. 394; Corbett v. Great Northern R. Co., 19 N.D. 450, 125 N.W. 1054.
It was proper to show all that defendant said by way of admissions in the court below,--the justice court,--but it was error to show all that was done and what the justice said to him, and the admission of such evidence could have no other effect than to prejudice the jury. Breitenbach v. Trowbridge, 64 Mich. 393, 8 Am. St. Rep. 829, 31 N.W. 404; 1 Greenl. Ev. § 537, note; Phillipps Ev. 523, note 4; Clark v. Irvin, 9 Ohio 132; Crawford v. Bergen, 91 Iowa 675, 60 N.W. 205; Root v. Sturdivant, 70 Iowa 55, 29 N.W. 802; Rudolph v. Landwerlen, 92 Ind. 34; Birchard v. Booth, 4 Wis. 67; Wisnieski v. Vanek, 5 Neb. (Unof.) 512, 99 N.W. 258; 1 Greenl. Ev. 16th ed. § 527; Risdon v. Yates, 145 Cal. 210, 78 P. 642.
In an action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed, the jury in addition to the actual damages may give damages for the sake of example; and, by way of punishing the defendant, actual damages against Koenig were not found by the jury. Therefore there was no ground for exemplary damages. Comp. Laws 1913, § 7145; Kuhn v. Chicago, M. & St. P. R. Co., 74 Iowa 137, 37 N.W. 116; Maxwell v. Kennedy, 50 Wis. 545, 7 N.W. 657; Boardman v. Marshalltown Grocery Co., 105 Iowa 445, 75 N.W. 343; Schippel v. Norton, 38 Kan. 567, 16 P. 804.
S.E. Ellsworth, and James Carr for respondents.
Where judgment is entered and motion for new trial is made and an order made denying the motion and appeal is taken, and in the undertaking on appeal the judgment is the only adverse proceeding specified whereby appellant feels aggrieved, the appeal is only from such judgment, and that so far as an appeal is attempted to be taken from the order denying a new trial, it is ineffectual. Sucker State Drill Co. v. Brock & Richardson, 18 N.D. 598, 120 N.W. 757.
Specifications to avail the party must be served with the notice of appeal, and be legitimately brought into the record. Comp. Laws 1913, § 7656.
The test of whether or not the cause of action made the subject of a counterclaim arises out of the same transaction as that set forth in the complaint, depends upon a judicial examination of the pleadings. It is not sufficient for a party to allege in the beginning of his counterclaim that the facts pleaded arise out of the same transaction and fracas set forth in the complaint. It must appear from the facts pleaded that the counterclaim does arise out of the same cause of action set forth in the complaint. Comp. Laws 1913, § 7749; Wrege v. Jones, 13 N.D. 267, 112 Am. St. Rep. 679, 100 N.W. 705, 3 Ann. Cas. 482.
It is held that one assault cannot be the subject of a counterclaim against the cause of action for another assault, even though they are alleged to have occurred in the same affray. Schnaderbeck v. Worth, 8 Abb. Pr. 37; Prosser v. Carroll, 33 Misc. 428, 68 N.Y.S. 542.
The fact that the defendants act in unison in making the assault, and contribute effort or encouragement to bring it about or to further the carrying out of the same, is sufficient to establish joint liability. Herron v. Hughes, 25 Cal. 556; 8 Cyc. 657, 677.
Press Pub. Co. v. Monroe, 51 L.R.A. 353, 19 C. C. A. 429, 38 U. S. App. 410, 73 F. 196.
This is also true though no actual damages are sustained. Lampert v. Judge & D. Drug Co., 238 Mo. 409, 37 L.R.A. (N.S.) 533, 141 S.W. 1095, Ann. Cas. 1913A, 351; Vlasservitch v. Augusta & A. R. Co., 85 S.C. 291, 67 S.E. 307.
This is an action to recover damages for a grave and unprovoked assault and battery. On evidence showing the guilt of each defendant beyond a reasonable doubt, the jury found a verdict against them. From the judgment they appeal to this court and assign about eighty errors, based on objections and exceptions. To nearly every simple question the counsel has appended needless objections and exceptions or motions to strike. But such objections and exceptions are not a legal tender, and are no cause for vacating a verdict and judgment based on clear and convincing evidence. When a party commits a brutal and unprovoked assault and battery, it is folly to think of paying of and making a settlement by any number of legal quibbles. The only real question is, Has the defendant had a fair trial and is the verdict well sustained by the evidence?
The plaintiff is an attorney of Jamestown, and at the time of the assault he was on the farm of Andrew Neva booking and superintending proceedings of a friendly chattel-mortgage sale. The defendants are related. They went together and sought an opportunity to insult and quarrel with the plaintiff. He is not a fighter. He had no officer present at the sale to protect him, and he tried to avoid a quarrel, and said he did not want any trouble with them. When his eyes were turned away, Peter Neva struck him a violent blow on the mouth, breaking out two of his front teeth. The parties clinched and in the struggle Peter fell or was brought to the ground. The plaintiff let him up on demand of the other defendants. Plaintiff then started for his car, and was about to enter it when Peter Neva struck him a violent blow on the nose, fracturing the bone. The other defendants stood...
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