Excelsior Clay Works v. Decamp
| Decision Date | 09 April 1907 |
| Docket Number | 5,915 |
| Citation | 80 N.E. 981,40 Ind.App. 26 |
| Parties | EXCELSIOR CLAY WORKS v. DECAMP |
| Court | Indiana Appellate Court |
From Clay Circuit Court; Presley O. Colliver, Judge.
Action by Arthur De Camp and others against Excelsior Clay Works and another. From a judgment for plaintiffs, defendant Excelsior Clay Works appeals.
Reversed.
Frank A. Horner, for appellant.
A. W Knight, for appellees.
Action by appellees against the Excelsior Clay Works. The case was tried by a jury, and a verdict returned in favor of appellees, assessing their damage at $ 312.
The complaint is in two paragraphs. Frank Pechio was made a defendant to answer to any interest he might claim, and filed a disclaimer of interest. The appellant demurred to the complaint. Said demurrer was overruled, and such ruling is assigned as error. No objection to or criticism of the second paragraph of complaint is made, and, under the established rule, objections to the first paragraph are not sufficient to sustain the assignment.
The substance of the first paragraph of complaint is: The appellant, a corporation engaged in the manufacture of clay products, operated and owned a coal mine on its premises in suit, and on July 26, 1899, Frank Pechio, came lawfully into possession, under a lease, of certain lands adjacent to those of the appellant. By the terms of his lease he was restricted to mining and removing coal from said land, and to other uses necessary to such mining operations.
It is further averred that the rights of said Frank Pechio were prior to the institution of the action, assigned to appellees; that by reason of the foregoing facts appellees were damaged in the sum of $ 2,500.
Appellant answered in two paragraphs. The first is a general denial directed to both paragraphs of the complaint, while the second paragraph is addressed to the first paragraph of the complaint. The substance of such answer is that if appellant crossed the line and mined and appropriated to its use and benefit any coal whatever belonging to appellees or their assignor, the same was done, as appellees allege in their first paragraph of complaint, by inadvertence and mistake as to the lines dividing appellees' land and coal from that of appellant, and was not in any manner intentionally or knowingly done with any view or purpose of wronging or injuring appellees or their assignor; that appellant has at no time refused to pay for any such coal, if any was so appropriated by it, at such time that the amount thereof, if any, could be ascertained by survey or agreement. And appellant says that before the beginning of this action and before the assignment by Pechio to appellees of the alleged claim in suit, said Pechio became and was indebted, and still is indebted, to appellant in the sum of $ 2,500, by virtue of the following facts: That appellant owns, and at the time of the occurrence of the matters herein set out, owned and was in possession of, certain lands described; that said Pechio was, and had been until the assignment by him to appellees, in possession under a lease of the coal underlying certain described lands adjoining those of appellant; that under the terms of said lease Pechio is restricted to mining and removing coal; that a stratum of coal extends uniformly under the surface of all of said land, and the appellant and Pechio, during all the time since July 26, 1899, were engaged in the business of mining coal from said stratum in their said adjoining lands; that the lines dividing the surface of said adjoining lands were not well defined, and in mining such coal it was difficult to ascertain beneath the surface the exact lines dividing that part of said stratum, and the coal belonging to appellant from that part of the same stratum which was leased by Pechio; that, owing to such difficulty in running the exact lines dividing such real estate and said stratum of coal, said Pechio, on July 26, 1899, and on divers other times and days, the exact dates whereof are unknown to defendant, did, without license, but by inadvertence and mistake, and without any intention whatever to wrong or harm appellant, break into and enter from the entries and workings underneath the surface of said real estate said lands and coal veins of appellant, and did then and there, without license or right, but by inadvertence and mistake, and without intention whatever to wrong or harm appellant, mine, remove, and carry away therefrom, and appropriate to his own use and benefit, and receive and enjoy the profit of 1,000 tons of coal from the lands of appellant, of the value of $ 2,500; that by reason thereof said Pechio, before the beginning of the suit and before the assignment by him of his alleged claim to appellees, was indebted to appellant in said sum, which is past due and unpaid. Wherefore it was prayed that any amount found due appellees upon their first paragraph of complaint be set off against the amount due to appellant from said Pechio.
Appellees filed a motion to strike out the foregoing answer, which motion was by the court sustained, and exception reserved and such ruling assigned as error.
The statute requires that "the complaint shall contain * * * a statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended." § 341 Burns 1901, § 338 R. S. 1881. The plaintiff must recover according to the averments of his complaint. Bixel v. Bixel (1886), 107 Ind. 534, 8 N.E. 614.
Whether the pleading is an answer, set-off, or counterclaim is determined from the facts stated therein. Jones v. Hathaway (1881), 77 Ind. 14; Mills v. Rosenbaum (1885), 103 Ind. 152, 2 N.E. 313; Crowder v. Reed (1881), 80 Ind. 1. The pleading which has been heretofore referred to as an answer purports upon its face to be an answer, a set-off, and a cross-complaint. It cannot be all. § 350 Burns 1901, § 347 R. S. 1881; Huber Mfg. Co. v. Busey (1896), 16 Ind.App. 410, 43 N.E. 967; Blakely v. Boruff (1880), 71 Ind. 93.
"A counterclaim is any matter arising out of or connected with the cause of action which might be the subject of an action in favor of the defendant, or which would tend to reduce the plaintiff's claim or demand for damages." § 353 Burns 1901, § 350 R. S. 1881. This section must be taken in connection with § 354 Burns 1901, § 351 R. S. 1881. Woodruff v. Garner (1886), 27 Ind. 4, 6, 89 Am. Dec. 477; State v. Gerhardt (1896), 145 Ind. 439, 33 L. R. A. 313, 44 N.E. 469. The language of the latter section is: "If any defendant personally served with notice omit to set up a counterclaim arising out of the contract, or transaction set forth in the complaint as the ground of the plaintiff's claims, or any of them, he cannot afterward maintain an action against the plaintiff therefor, except at his own cost."
The phrase "cause of action" means the matter for which an action may be brought (Bouvier's Law Dict.). "The 'cause of action,' then, is the 'wrong.'" Bliss, Code Pl. (3d ed.), § 113. The language of § 353, supra, taken literally and by itself, would not be of much practical importance. The Kansas statute contains the term "subject of action," where in our statute the term "cause of action" is used. The supreme court of Kansas, in discussing their statute, said: "The legislature did not commit the folly of enacting that several 'causes of action' may be united when they all arise out of the transactions connected with the same 'cause of action.'" Scarborough v. Smith (1877), 18 Kan. 399, 406; Woodruff v. Garner, supra; Standley v. Northwestern, etc., Ins. Co. (1884), 95 Ind. 254, 263.
A cause of action in favor of the defendant cannot arise out of the wrong which the defendant has done to the plaintiff. It may frequently arise out of the same transaction, and, when it does, it may be set up by way of counterclaim. It is entirely well settled that independent torts cannot be made to compensate each other by any form of pleading. Lake Shore, etc., R. C. v. Van Auken (1891), 1 Ind.App. 492, 27 N.E. 119; Terre Haute, etc., R. Co v. Pierce (1884), 95 Ind. 496, 500. It is also true that when the cause of action set up by way of counterclaim arises out of the contract which is the foundation of the plaintiff's action, the counterclaim may be entertained. Between these two extremes is the third class, in which the assertions of right on either hand "arise out of * * * the transaction set forth in the complaint." Whether the averments contained in the pleading, which has been heretofore referred to as an answer, but which is a counterclaim, if it is anything, show that the facts upon which it is founded arise out of the transaction set forth in the complaint, is the question, upon the answer to which the correctness of the action of the court in striking out said pleading depends. The meaning of the word "transaction" is therefore of controlling importance. Of it, Mr. Pomeroy, in his illuminating work on remedies and remedial rights,...
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